exv10w49






Exhibit 10.49




UNCONDITIONAL GUARANTY




	 	 	 
	Date:

	 	June 25, 2008
	 
	 	 
	OBLIGOR(S):

	 	Cornerstone Biopharma Holdings, Inc.
	ADDRESS:

	 	2000 Regency Parkway, Suite 255, Cary NC 27518
	 
	 	 
	GUARANTOR(S):

	 	Aristos Pharmaceuticals, Inc.
	ADDRESS:

	 	2000 Regency Parkway, Suite 255, Cary, NC 27518
	 
	 	 
	OBLIGEE:

	 	PARAGON COMMERCIAL BANK
	 

	 	3535 Glenwood Avenue
	 

	 	Raleigh, North Carolina 27612






WHEREAS, the above OBLIGOR(S) (hereinafter jointly and severally termed “Customer”) desire(s) to
obtain extensions of credit and/or a continuation of credit extensions and/or to engage in business
transactions and enter into various contractual relationships and otherwise to deal with Paragon
Commercial Bank (hereinafter termed “Bank”); and



WHEREAS, Bank is unwilling to extend or continue to extend credit to and/or to engage in business
transactions and enter into various contractual relationships with, and otherwise to deal with
Customer; unless it receives an unconditional and continuing, joint and several guaranty from the
above identified, undersigned GUARANTOR(S) (each, any and all of whom are hereinafter termed
“Guarantor”), covering all “Obligations of Customer,” as hereinafter defined.



NOW, THEREFORE, in consideration of the premises and of other good and valuable consideration, and
in order to induce Bank, from time to time, in its sole discretion to extend or continue to extend
credit(with or without security) to and/or to engage in business transactions and enter into
various contractual relationships with Customer (without limiting the generality of the foregoing,
this Guaranty is being given in order to induce Bank to lease and/or sell real, personal and/or
mixed property to Customer, to purchase or discount any Acceptances, Accounts, Chattel Paper,
Checks, Contracts, Contract Rights, Drafts, General Intangibles, Instruments, Investment
Securities, Land Contracts, Purchase Money Security Agreements (Conditional Sale Contracts of real
and/or personal property), Real and/or Personal Property Leases, or any other instruments or
evidences of indebtedness (with or without recourse) upon which Customer, jointly or severally, is
or may be liable as maker, co-maker, endorser, acceptor, guarantor, surety or otherwise and
otherwise to deal with Customer), Guarantor (jointly and severally, if more than one) hereby
absolutely and unconditionally guarantees to Bank and its successors and assigns, the due and
punctual payment of all indebtedness, obligations and liabilities of said Customer to Bank, and all
claims of Bank against the Customer primary or secondary (whether by way of endorsement or
otherwise), whether now existing or hereafter arising, whether arising out of contract(s), tort(s)
or otherwise, whether created directly with Bank or acquired by Bank through assignment,
endorsement or otherwise; whether matured or unmatured; whether absolute or contingent; whether
joint or several; whether secured or unsecured; whether monetary or nonmonetary; whether liquidated
or unliquidated, as and when the same become due and payable (whether by acceleration or
otherwise), in accordance with the terms of any instruments, accounts receivable, security
agreements, land and/or other contracts, drafts, leases, chattel paper, debts, obligations or
liabilities evidencing any such indebtedness, obligations, liabilities, or claims, including all
renewals, extensions, substitutions and/or modifications thereof (all indebtedness, obligations and
liabilities of the Customer to Bank and claims of Bank against Customer, including all of the
foregoing, being hereinafter collectively termed “Obligations of Customer”) provided, however, that
the maximum liability, jointly and severally, of the undersigned Guarantors hereunder, at any one
time outstanding, with respect to the aggregate principal amount of the “Obligations of Customer,”
shall not exceed the sum of money here specified, plus all interest or finance charges thereon,
costs of court, default interest thereon, late payment charges and the reasonable attorney’s fees
of Bank, to wit:



Four Million and 00/100 Dollars ($4,000,000.00)




Further, if the Obligations of Customer or this Guaranty are referred to an attorney-at-law,
including Bank’s in-house counsel, for collection, whether or not suit is commenced, Guarantor
expressly hereby agrees to pay all expenses of collection, including, without limitation,
reasonable attorneys’ fees. Guarantor hereby stipulates and agrees that, if suit is instituted,
15% of the total amount(s) due hereunder and remaining unpaid at the time suit is instituted by
Bank shall be deemed to be the “reasonable attorneys’ fees.”



In order to implement the foregoing and as additional inducements to Bank, Guarantor further
covenants and agrees:




	1.	 	This guaranty is and shall remain an unconditional and continuing guaranty of payment and not
of collection, shall remain in full force and effect irrespective of any interruption(s) in
the business or other dealings and relations of Customer with Bank and shall apply to and
guarantee the due and punctual payment and performance of all “Obligations of Customer” due by
Customer to Bank. To that end, Guarantor hereby expressly waives any right to require Bank to
bring any action against any Customer or any other person(s) or to require that resort be had
to any security or to any balance(s) of any deposit or other account(s) or debt(s) or
credit(s) on the books of Bank in favor of Customer or any other person(s) and without
limiting the generality of the foregoing, undersigned Guarantor herewith expressly waives any
rights he otherwise might have had under the provisions of G.S. §26-7, et seq. and/or other
laws to require Bank to attempt to recover against Customer and/or to realize upon any
securities or collateral security which Bank holds for the Obligations of Customer. Any
Guarantor may, by a written notice, delivered personally to or received by certified or
registered United States Mail by an officer of Bank actually involved in the transactions
being guaranteed hereby, at the address of Bank first above given, terminate this Guaranty
with respect to all “Obligations of Customer” incurred or contracted by Customer, acquired by
Bank, or otherwise arising more than thirty (30) business days after the date on which such
written notice is so delivered to or received by said Bank officer. Such written notice of
termination shall be the sole and exclusive method for terminating this Guaranty as to future
Obligations of Customer and notwithstanding termination, this Guaranty and all security given
for this Guaranty and/or the Obligations of Customer shall remain in full force and effect as
to all Obligations of Customer incurred, existing, or arising in any manner pre-termination,
including, without limitation, all Obligations of Customer then existing or thereafter arising
under loan commitments which exist pre-termination and all Obligations of Customer under lines
of credit and/or revolving lines of credit for advances both pre- and post-termination.




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	2.	 	TIME IS OF THE ESSENCE HEREOF. Any notice(s) to Guarantor shall be sufficiently given, if
mailed to the first above stated address(es) of Guarantor.
	 
	3.	 	This Guaranty Agreement constitutes the entire agreement between the parties with respect to
this Guaranty, and no waivers or modifications shall be valid unless they are reduced to
writing, duly executed by the party to be charged thereby, and expressly approved in writing
by an officer of Bank actually involved in the transactions being guaranteed hereby. This
Guaranty does not terminate, cancel, supersede, renew, or substitute for any existing
guarantee to Bank by any Guarantor, unless expressly provided herein, and the execution and
delivery hereafter to Bank by any Guarantor of a new guarantee shall not terminate, cancel,
supersede, or be a renewal or substitution for this Guaranty, unless expressly provided
therein, and all rights and remedies of Bank hereunder, under any existing guarantee, or under
any guarantee hereafter given to Bank by any Guarantor shall be cumulative and may be enforced
singly or concurrently.
	 
	4.	 	If any process is issued or ordered to be served upon Bank, seeking to seize Customer’s
and/or Guarantor’s rights and/or interests in any bank account(s), such bank account(s) shall
be deemed to have been and shall be set-off against any and all “Obligations of Customer”
and/or all obligations and liabilities of Guarantor hereunder, as of the time of the issuance
of any such writ or process, whether or not Customer, Guarantor and/or Bank shall then have
been served with notice thereof.
	 
	5.	 	All moneys available to and/or received by Bank for application toward payment of (or
reduction of) the “Obligations of Customer” may be applied by Bank to such individual debt(s)
in such manner, and apportioned in such amount(s) and at such time(s), as Bank, in its sole
discretion, may deem suitable or desirable.
	 
	6.	 	As security for any and all liabilities of Guarantor hereunder, now existing or hereafter
arising, Guarantor hereby grants Bank a security interest in any and all moneys or other
property (i.e., goods and merchandise, as well as all documents relative thereto, also, funds,
investment securities, choses in action and any and all other forms of property, whether real,
personal or mixed, and any right, title, or interest of Guarantor therein or thereto) and/or
the proceeds thereof, which have been or may hereafter be, deposited or left with Bank (or
with any agent or other third party acting on Bank’s behalf) by or for the account or credit
of Guarantor, including (without limitation of the foregoing), any property in which Guarantor
may have any interest. Further, where any obligation of Guarantor is due and unpaid Bank
hereunder, Bank is herewith authorized to exercise its right of Set-Off or “Bank Lien” as to
any moneys deposited in demand, checking, time, savings, or other accounts of any nature
maintained in and with it by any of the undersigned, without advance notice. Such right of
Set-Off shall also be applicable and exercised by Bank, in its sole discretion, where Bank is
indebted to any Guarantor by reason of any Certificate(s) of Deposit, Bond(s), Note(s) or
otherwise.
	 
	7.	 	Guarantor acknowledges that any termination of liability hereunder, as provided for in
paragraph 1 above shall not terminate this Guaranty as to existing Obligations of Customer nor
release Guarantor from full liability for “Obligations of Customer” hereby guaranteed and then
in existence including, without limitation, all Obligations of Customer the existing or
thereafter arising under loan commitments which exist pre-termination and all Obligations of
Customer under lines of credit and for revolving lines of credit for advances subsequent to
the effective date of termination, or from full liability for renewal(s) or extension(s) of
the “Obligations of Customer” in whole or in part, whether such renewals or extensions are
made before or after the effective date of such termination, and with or without notice to
Guarantor, and for substitution therefor, or modifications thereof.
	 
	8.	 	The termination of the Guaranty by one or more Guarantors, or the release, settlement or
compromise by Bank with respect to any one or more Guarantors, shall not affect the
obligations or liability of the remaining Guarantors hereunder, and as to the remaining
Guarantors, this Guaranty shall continue in effect as if such Guarantors had been the only
Guarantors executing this Guaranty.
	 
	9.	 	Guarantor agrees that his liability hereunder shall not be diminished by any failure on the
part of Bank to perfect or continue perfection of (by filing, recording or otherwise) any
security interest(s) it may have in any property securing this Unconditional Guaranty and/or
the “Obligations of Customer” secured hereby and hereunder.
	 
	10.	 	Guarantor further hereby consents and agrees that Bank may at any time, or from time to time,
in its sole discretion: (i) renew, extend or otherwise change the time of payment, and/or the
manner, place or terms of payment of any or all of the “Obligations of Customer” or otherwise
modify the Obligations of Customer; (ii) grant indulgences generally from time to time to the
Customer and/or any other person liable for the “Obligations of Customer”; (iii) exchange,
release and/or surrender all or any of the collateral security, or any part(s) thereof, by
whomsoever deposited, which is or may hereafter be held by it or in which it has a lien or
security interest in connection with all or any of the “Obligations of Customer” and/or any
liabilities or obligations of Guarantor hereunder; (iv) sell or otherwise dispose of and/or
purchase all or any of any such collateral at public or private sale, or to or through any
investment securities broker, and after deducting all costs and expenses of every kind for
collection, preparation for sale, sale or delivery, the net proceeds of any such sale(s) or
other disposition may be applied by Bank upon all or any of the “Obligations of Customer”; and
(v) settle or compromise with the Customer, any insurance carrier and/or any other person(s)
liable thereon, any and all of the “Obligations of Customer,” and/or subordinate the payment
of all or any part of same, to the payment of any other debts or claims, which may at any
time(s) be due or owing to Bank and/or any other person(s); all in such manner and upon such
terms as Bank may deem proper and/or desirable, and without notice to or further assent from
Guarantor, it being agreed that Guarantor shall be and remain bound upon this Unconditional
Guaranty, irrespective of the existence, value or condition of any collateral, or the
impairment of any collateral (to include, without limitation, failure to perfect a security
interest in collateral), or the unenforceability of any of the Obligations of Customer or the
discharge of or release of Customer from liability for any of the Obligations of Customer and
notwithstanding any such change, exchange, settlement, compromise, surrender, release, sale or
other disposition, application, renewal or extension and notwithstanding also that the
“Obligations of Customer” may at any time(s) exceed the aggregate principal sum hereinabove
prescribed (if any such limiting sum appears). If Bank should request Guarantor to consent to
any of the foregoing, such request and/or consent by Guarantor shall not constitute a waiver
by Bank of the provisions of this paragraph which permit such actions without Guarantor’s
consent, nor of any other provision of this Guaranty relating to acts or inactions of Bank and
such request and/or consent shall not create a course of dealing between Bank and Guarantor
that would require the consent of Guarantor to any of the foregoing in the future. Further,
this Guaranty shall not be construed to impose any obligation on Bank to extend or continue to
extend credit or otherwise deal with Customer at any time.
	 
	11.	 	If Customer is an organization, this Guaranty covers all “Obligations of Customer” purporting
to be created or undertaken on behalf of such organization by any officer, partner, manager,
employee, or agent of such organization, without regard to the actual authority of any such
officer, partner, manager, employee, or agent, whether or not corporate or partnership
resolutions, proper or otherwise, are given by any Customer to Bank, and/or whether or not
such purported organizations are legally chartered or organized.
	 
	12.	 	This Unconditional, Continuing Guaranty shall be binding upon Guarantor, and the heirs,
executors, administrators, successors and assigns of Guarantor; and it shall inure to the
benefit of, and be enforceable by Bank, and its successors, transferees and assigns. The
death of Guarantor






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	 	 	shall not terminate any liability hereunder. This Unconditional Guaranty shall remain in force
after Guarantor’s death until written notice of termination, sent by a legal representative of
Guarantor, is received by Bank as set forth in paragraph 1 above and such termination shall be
limited as provided in paragraphs 1 and 7 above.
	 
	13.	 	This Unconditional Guaranty shall be deemed to have been made under and shall be governed by
the Laws of the State of North Carolina in all respects, including matters of construction,
validity and performance. Further, all terms or expressions contained herein which are
defined in Articles 1, 3, or 9 of the North Carolina Uniform Commercial Code shall have the
same meaning herein as in said Articles of said Code.
	 
	14.	 	No waiver by Bank of any default(s) by Guarantor or Customer shall operate as a waiver of any
other default or of the same default on a future occasion. If more than one person has signed
this Guaranty, such parties are jointly and severally obligated hereunder. Further, use of
the masculine or neuter pronoun herein shall include the masculine, feminine or neuter, and
also the plural. The term “Guarantor,” as used herein, shall (if signed by more than one
person) mean the “Guarantors and each of them.” If any Guarantor shall be a partnership, the
obligations, liabilities and agreements on the part of such Guarantor shall remain in full
force and effect and fully applicable notwithstanding any changes in the individuals composing
the partnership. Further, the term “Guarantor” shall include in such event any altered or
successive partnerships, it being also understood that the predecessor partnership(s) and
their partners shall not thereby be released from any obligations or liabilities hereunder.
Bank, or any other holder hereof, may correct patent errors in this Guaranty.
	 
	15.	 	Guarantor hereby waives: (i) notice of acceptance of this Guaranty; (ii) notice(s) of
extensions of credit and/or continuations of credit extensions to Customer by Bank; (iii)
notice(s) of entering into and engaging in business transactions and/or contractual
relationships and any other dealings between Customer and Bank; (iv) presentment and/or demand
for payment of any of the “Obligations of Customer”; (v) protest or notice of dishonor or
default to Guarantor or to any other person with respect to any of the “Obligations of
Customer” or with respect to any security therefor; (vi) all other notices to which Guarantor
might otherwise be entitled; (vii) any demand for payment under this Guaranty; (viii) any
defense of any kind which the Customer might have; and (ix) application of any other defenses
available to Guarantor.
	 
	16.	 	Anything contained herein to the contrary notwithstanding, if for any reason the effective
rate of interest on any of the Obligations of Customer should exceed the maximum lawful
contract rate, the effective rate of such obligation(s) shall be deemed reduced to and shall
be such maximum lawful contract rate, and any sums of interest which have been collected in
excess of such maximum lawful contract rate shall be applied as a credit against the unpaid
principal balance due hereunder.
	 
	17.	 	In the event any provision(s) of this instrument should be left blank or incomplete,
Guarantor hereby authorizes and empowers Bank to supply and complete the necessary information
to complete or fill in the blank provision(s).
	 
	18.	 	Should any one or more provisions of this Unconditional Guaranty be determined to be illegal
or unenforceable by a court of competent jurisdiction, the other provisions shall remain in
full force and effect.
	 
	19.	 	In the event of a change in, or amendment or modification of the legal status or existence of
the Customer, this Guaranty shall continue and shall also cover the indebtedness of the
Customer under the new or amended status, according to the terms hereof guaranteeing the
Obligations of the original Customer.
	 
	20.	 	The obligation of any Guarantor executing this Unconditional Guaranty shall not be dependent
upon the subsequent execution hereof by any other person.
	 
	21.	 	Guarantor shall provide Bank with such financial information as Bank may from time to time
request. Any statement of account or records that bind the Customer shall be binding against
the Guarantor and the records of Bank maintained in the ordinary course of its business with
respect to the Obligations of Customer shall be binding on Guarantor in all respects,
including, without limitation, the extent and nature of the Obligations of Customer and the
liabilities of Guarantor under this Guaranty.
	 
	22.	 	Guarantor warrants and covenants that Guarantor has made such inquiries as Guarantor deems
necessary in order to ascertain the financial condition of Customer, and has, in fact,
ascertained the financial condition of Customer and is satisfied with such financial
condition, that Guarantor has adequate means to obtain from Customer, on a continuing basis,
information concerning the financial condition of Customer, and that Guarantor has not relied,
and will not rely, on Bank to provide such information, now or in the future.
	 
	23.	 	Guarantor agrees that in the event judgment or any court order or administrative order for
turnover or recovery is entered against Bank (whether by consent, compromise, settlement or
otherwise) for, or Bank is required or agrees to repay (i) the amount of any monetary payment
or transfer of any property (whether real, personal or mixed, tangible or intangible, or the
value thereof) made to Bank by or on behalf of the Customer and/or Guarantor for credit to the
Obligations of Customer, or (ii) the amount of any set-off(s) exercised by Bank and credited
to Obligations of Customer, then in such event (and notwithstanding the prior discharge or
satisfaction in whole or in part of any or all Obligations of Customer due Bank or the written
or stamped notation of cancellation, release or satisfaction affixed to this Guaranty or any
instrument of indebtedness evidencing the Obligations of Customer, or any prior notice of the
termination of this Guaranty as to future debts of Customer) the amount or value of any such
payments, property or set-off(s) recovered from Bank shall be deemed to be Obligations of
Customer and this Guaranty and the liabilities of Guarantor hereunder shall be automatically
revived and reinstated and shall continue and remain in full force and effect as to the same,
together with interest thereon from date of recovery at the rate(s) applicable to the
Obligations of Customer to which such payments, transfers or set-off(s) were credited, costs
of court, and the reasonable attorney’s fees incurred by Bank in connection therewith.
	 
	24.	 	Guarantor further expressly waives, for Bank’s benefit and the benefit of Customer and any
other guarantor, maker or endorser of the Obligations of Customer, any and all rights of
recourse against Customer, or any other guarantor, maker, or endorser of the Obligations of
Customer, or property or assets of the same, arising out of any payment made under or pursuant
to this Guaranty, including any claim of subrogation, reimbursement, exoneration, contribution
or indemnity that the undersigned Guarantor may have against the Customer, any other
guarantor, or maker or endorser of the Obligations of Customer. Guarantor will not enter into
any contract or agreement in violation of the provisions hereinabove, and any such purported
contract or agreement shall be void ab initio.
	 
	25.	 	EVENTS OF DEFAULT. Guarantor shall be in default under this Unconditional Guaranty upon the
happening of any of the following events, circumstances or conditions, to wit:




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	 	(a)	 	Default in the payment or performance of any of the obligations or of any covenant,
warranty or liability contained or referred to herein, or contained in any other contract
or agreement of Customer and/or Guarantor with Bank, whether now existing or hereafter
arising; or
	 
	 	(b)	 	Any warranty, representation or statement made or furnished to Bank by or on behalf of
Customer and/or Guarantor, in connection with this Guaranty Agreement or to induce Bank to
extend credit or otherwise deal with Customer and/or Guarantor proving to have been
materially false in any material respect when made or furnished; or
	 
	 	(c)	 	Death, dissolution, termination of existence, insolvency, business failure, appointment
of a receiver of any part of the property of, assignment for the benefit of creditors by,
or the commencement of any proceeding under any State or Federal Bankruptcy or insolvency
laws by or against Guarantor and/or Customer; or
	 
	 	(d)	 	Failure of a Customer and/or Guarantor which is a legal entity to maintain its
existence in good standing; or
	 
	 	(e)	 	Upon the entry of any monetary judgment or the assessment and/or filing of any tax lien
against either Customer and/or Guarantor or upon the issuance of any writ of garnishment or
attachment against any property of, debts due or rights of Customer and/or Guarantor, to
specifically include the commencement of any action or proceeding to seize moneys of either
Customer and/or Guarantor on deposit in any bank account with Bank; or
	 
	 	(f)	 	If Bank should otherwise deem itself, any security interests, its collateral or
property, or the “Obligations of Customer” guaranteed hereby and hereunder and/or the
liability of Guarantor hereunder unsafe or insecure, or should Bank, in good faith, believe
that the prospect of payment or other performance by Customer and/or Guarantor is impaired.






	26.	 	REMEDIES ON DEFAULT. Upon the occurrence of any of the foregoing events, circumstances, or
conditions of default, all of the obligations evidenced herein and secured or guaranteed
hereby shall immediately be due and payable without notice. Further, Bank shall then have all
of the rights and remedies granted hereunder, all of the rights and remedies of a Secured
Party and/or Holder-in-Due Course under the North Carolina Uniform Commercial Code and/or
under other laws of North Carolina.
	 
	27.	 	Guarantor acknowledges that Guarantor has read this Guaranty and fully understands the rights
granted to Bank herein, and the waiver of rights of Guarantor. Guarantor further acknowledges that each of the terms contained herein is a material
inducement to Bank to extend credit to the Customer and is necessary in order for the Bank to
fully realize the benefits of Bank’s bargained for agreement with the Customer and Guarantor.




This Guaranty is secured by: N/A     
          
               
     
     
     
                    
     




                
                
                                                     




 




IN WITNESS WHEREOF, this Guaranty is executed (i) if by individuals, by hereunto setting their
hands under seal by adoption of the word “SEAL” appearing next to the individuals’ names, (ii) if
by a corporation, by the duly authorized officers of the corporation on its behalf under seal by
adoption of the facsimile seal printed hereon for such purpose or, if an impression seal appears
hereon, by affixing such impression seal, (iii) if by a partnership, by the duly authorized
partners of the partnership on its behalf under seal by adoption of the word “SEAL” appearing next
to the name of the partnership and/or the signatures of the partners, or (iv) if by a limited
liability company, by the duly authorized member or manager of the limited liability company on its
behalf under seal by adoption of the word “SEAL” appearing next to the name of the limited
liability company and/or the signatures of the members or managers, on the day and year first above
written.




	 	 	 	 	 
	 	Aristos Pharmaceuticals, Inc.

 	 
	 	By:  	     /s/ Craig A. Collard	 
	 	 	     Craig A. Collard, CEO 	 
	 	 	 	 
	 




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