EXHIBIT 4.5
VOTING AND TRANSFER RESTRICTION AGREEMENT
This Voting and Transfer Restriction Agreement dated July 29, 2003 is
by and among Esperion Therapeutics, Inc., a Delaware corporation (the
"Company"), Scott Sacane ("Sacane"), Durus Capital Management, LLC and Durus
Capital Management (NA), LLC (together, "Durus," and together with Sacane,
referred to herein as the "Sacane Group").
RECITALS
WHEREAS, as of the date hereof, the Sacane Group has reported that it is the
beneficial owner (as such term is defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of 9,726,900 shares of
the Company's common stock, par value $0.001 per share (the "Common Stock");
WHEREAS, the Sacane Group has acquired shares of Common Stock in an amount that
would cause the Sacane Group to be an Acquiring Person, as such term is defined
in the Company's Rights Agreement, dated April 18, 2002, and amended by
Amendment No. 1 dated November 26, 2002 (the "Rights Agreement"), but for the
good faith determination by the Company's Board of Directors that such
acquisition of Common Stock was inadvertent and without any intention of
changing or influencing control of the Company;
WHEREAS, the Board of Directors has determined in good faith to amend the Rights
Agreement so as to exclude the Sacane Group from the definition of Acquiring
Person unless and until the Sacane Group becomes the beneficial owner of more
than 33% of the Company's outstanding Common Stock as set forth in the amended
Rights Agreement; and
WHEREAS, the Company and the Sacane Group desire to establish in this Agreement
certain conditions of the Sacane Group's relationship with the Company.
AGREEMENT
NOW THEREFORE, the parties hereto, in consideration of the mutual covenants and
agreements contained herein and intending to be legally bound, hereby agree as
follows:
Article I--Representations and Warranties
Section 1.01. Representations and Warranties of the Sacane Group. The Sacane
Group represents and warrants to the Company, as of the date hereof, as follows:
(a) The execution, delivery and performance by the Sacane Group of
this Agreement and the consummation by the Sacane Group of the transactions
contemplated by this Agreement are within its corporate powers and have been
duly authorized by all necessary corporate action on its part. This Agreement
constitutes a legal, valid and
binding agreement of the Sacane Group enforceable against the Sacane Group in
accordance with its terms (i) except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, including the
effect of statutory and other laws regarding fraudulent conveyances and
preferential transfers, and (ii) subject to the limitations imposed by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding at law or in equity);
(b) The execution, delivery and performance of this Agreement by
the Sacane Group does not and will not contravene or conflict with or constitute
a default under the Sacane Group's relevant formation and operating documents;
(c) The Sacane Group "beneficially owns" (as such term is defined
in Rule 13d-3 under the Exchange Act) 9,726,900 shares of Common Stock and
neither the Sacane Group, nor any "Affiliate" or "Associate" (as such terms are
defined in Rule 12b-2 under the Exchange Act), owns any other Voting Securities
(as defined in Section 2.01); and
(d) The Sacane Group has acquired beneficial ownership of the
Voting Securities with a "passive intent" (as used in Rule 13d-1(c) under the
Exchange Act); that is, with no purpose, intent or effect of controlling the
Company or changing or influencing the control of the Company, or in connection
with or as a participant in any transaction having that purpose, intent or
effect. The acquisition by the Sacane Group of beneficial ownership of more than
25% of the Company's outstanding Voting Securities was inadvertent.
Section 1.02. Representations and Warranties of the Company. The Company
represents and warrants to the Sacane Group as follows:
(a) As of the date hereof, the execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the
transactions contemplated by this Agreement are within its corporate powers and
have been duly authorized by all necessary corporate action on its part. This
Agreement constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms (i) except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and (ii) subject to
the limitations imposed by general equitable principles (regardless of whether
such enforceability is considered in a proceeding at law or in equity); and
(b) As of June 30, 2002, the Company had outstanding 29,480,766
shares of Common Stock.
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Article II--Term of Agreement
Section 2.01. Term. The term (the "Term") of this Agreement shall commence on
the date hereof and shall continue until the date on which the Sacane Group
beneficially owns less than twenty percent (20%) of Company's outstanding Voting
Securities. For purposes of this Agreement, the term "Voting Securities" shall
mean any securities entitled to vote generally on matters required to be
presented for a vote by the stockholders of the Company, or any direct or
indirect rights or options to acquire any such securities or any securities
convertible or exercisable into or exchangeable for such securities.
Article III--Voting and Standstill Provisions
Section 3.01. Restrictions on Voting Securities. For the Term of this Agreement,
the Sacane Group agrees that any and all of the Voting Securities beneficially
owned by the Sacane Group that represent more than 20% of the Company's
outstanding Voting Securities shall be voted by the Sacane Group in proportion
to the vote(s) cast by all of the other stockholders of the Company who
beneficially own Voting Securities other than the Sacane Group.
Section 3.02. Restrictions on Certain Actions by the Sacane Group. Subject to
Article IV of this Agreement, during the Term, the Sacane Group covenants that
it will not, and will cause each of its Affiliates and Associates not to, singly
or as part of a partnership, limited partnership, syndicate or other group (as
those terms are used in Section 13(d)(3) of the Exchange Act), directly or
indirectly:
(a) acquire beneficial ownership of more than 33% of the Company's
outstanding Voting Securities;
(b) make, or in any way participate in any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the Exchange
Act), solicit any consent or communicate with or seek to advise or influence any
person or entity with respect to the voting of any Voting Securities or become a
"participant" in any "election contest" (as such terms are defined or used in
Rule 14a-11 under the Exchange Act) with respect to the Company;
(c) form, join or encourage the formation of, any new "person"
within the meaning of Section 13(d)(3) of the Exchange Act with respect to any
Voting Securities;
(d) deposit any Voting Securities into a voting trust or, other
than as set forth in this Agreement, subject any such Voting Securities to any
arrangement or agreement with respect to the voting thereof;
(e) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to the Company as
described in Rule 14a-8
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under the Exchange Act, or induce or attempt to induce any other person to
initiate any stockholder proposal;
(f) seek election to or seek to place a representative on the
Board of Directors of the Company or, except with the approval of management of
the Company, seek the removal of any member of the Board of Directors of the
Company;
(g) except with the approval of management of the Company, call or
seek to have called any meeting of the stockholders of the Company;
(h) act to seek or control, disrupt or influence the management,
policies or affairs of the Company, except with the approval of management of
the Company;
(i) make any public announcement, public comment, public statement
or public proposal whatsoever with respect to, any form of business combination
transaction involving the Company, including, without limitation, a merger,
exchange offer or liquidation of the Company's assets, or any restructuring,
recapitalization or similar transaction with respect to the Company; or
(j) instigate or encourage any third party to do any of the
foregoing.
Article IV--Transfer Restrictions
Section 4.01. Transfer Restrictions.
(a) For the Term of this Agreement, the Sacane Group covenants that,
without the prior written consent of the Company, the amount of Voting
Securities sold or otherwise disposed of by the Sacane Group or its Affiliates
or Associates in any three-month period shall not exceed the greater of (a) one
percent (1%) of the outstanding shares of Common Stock as shown by the most
recent report or statement published by the Company; (b) the average weekly
reported volume of trading in the Company's Common stock on all national
securities exchanges and/or reported through the automated quotation system of a
registered securities association during the four calendar weeks preceding the
notice required by Rule 144(h) under the Securities Act of 1933, as amended, or
if no such notice is required, the date of receipt of the order to execute the
transaction by the broker or the date of execution of the transaction directly
with a market maker; or (c) the average weekly volume of trading in such
securities reported through the consolidated transaction reporting system
contemplated by Rule 11Aa3-1 under the Exchange Act during the four-week period
specified in subsection (b) of this Section 4.01. Any transfers by members,
partners or other such Affiliates or Associates of the Sacane Group of shares
received by such persons from the Sacane Group or its Affiliates or Associates
as a distribution shall be aggregated for the purposes of calculating the
transfer limitations pursuant to this Section 4.01 for a period of two years
after the date of the distribution.
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(b) The Sacane Group covenants that it will not transfer any
shares of the Voting Securities that it beneficially owns before October 29,
2003.
Section 4.02. Reporting Obligations. The Sacane Group covenants to comply
with all of the applicable reporting obligations under Section 13 of the
Exchange Act and the rules promulgated thereunder and, as soon as reasonably
practicable, the applicable reporting obligations under Section 16 of the
Exchange Act and the rules promulgated thereunder. In addition, the Sacane Group
covenants that it will deliver to the Company a copy of all beneficial ownership
reports that are required to be filed pursuant to Sections 13 and 16 of the
Exchange Act and the rules promulgated thereunder in accordance with the notice
provisions herein, within three (3) business days of the date of the filing of
such report with the Securities and Exchange Commission.
Article V--Miscellaneous
Section 5.01. Enforcement. The Sacane Group, on the one hand, and the Company,
on the other, acknowledge and agree that irreparable damage would occur if any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically its provisions in any court of the United States or
any state having jurisdiction, this being in addition to any other remedy to
which they may be entitled at law or in equity.
Section 5.02. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the transactions
contemplated by such parties and may be amended only by an agreement in writing
executed by both parties.
Section 5.03. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of the
parties that they would have executed the remaining provisions without including
any that may be declared unenforceable.
Section 5.04. Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provision of this
Agreement.
Section 5.05. Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties, and each such
executed counterpart will be an original instrument.
Section 5.06. Notices. All notice, requests, demands and other
communications required or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, facsimile transmission or air
courier guaranteeing overnight delivery:
(a) if to the Company, to:
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Esperion Therapeutics, Inc.
3621 South State Street
695 KMS Place
Ann Arbor, Michigan 48108
Attention: General Counsel
Telephone: (734) 332-0506
Facsimile: (734) 622-8334
with copies to:
Linda Griggs, Esquire
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave, N.W.
Washington, DC 20004
Telephone: (202) 739-3000
Facsimile: (202) 739-3001
or to other such person or address as the Company shall furnish to the Sacane
Group in writing;
(b) if to the Sacane Group, to
Scott Sacane
c/o Durus Capital Management, LLC
20 Marshall Street
Suite 320
Norwalk, Connecticut 06854
Telephone: (203) 899-3100
Facsimile: (203) 899-3125
with copies to:
William Natbony, Esq.
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, New York 10022
Telephone: (212) 940-8930
Facsimile: (212) 940-8994
or to other such persons or address as the Sacane Group shall furnish to the
Company in writing.
All notices, requests, demands and other communications shall be deemed to have
been duly given; at the time of delivery by hand, if personally delivered; five
(5) business days after having been deposited in the mail, postage pre-paid, if
mailed; when answered back, if telexed; when received acknowledged, if by
facsimile; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
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Section 5.07. Successors and Assigns. This Agreement shall inure to the
benefit of any successor or assign of the Company.
Section 5.08. Governing Law. This Agreement will be governed and construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first referred to above.
ESPERION THERAPEUTICS, INC.
By: /s/ Roger S. Newton, Ph.D
--------------------------------
Name: Roger S. Newton, Ph.D
Title: President and Chief Executive
Officer
/s/ Scott Sacane
---------------------------------------
Scott Sacane
DURUS CAPITAL MANAGEMENT, LLC
By: /s/ Scott Sacane
--------------------------------
Name: Scott Sacane, Managing Member
DURUS CAPITAL MANAGEMENT (NA), LLC
By: /s/ Scott Sacane
--------------------------------
Name: Scott Sacane, Managing Member
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