Exhibit 2
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"),
Xxxxx Xxxxxx ("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 under the Exchange Act, or induce or attempt to induce any other
person to initiate any stockholder proposal;
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(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:
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(a) if to the Company, to:
Esperion Therapeutics, Inc.
0000 Xxxxx Xxxxx Xxxxxx
000 XXX Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxx Xxxxxx, Esquire
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxxxxxxxx Xxx, X.X.
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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
Xxxxx Xxxxxx
c/o Durus Capital Management, LLC
00 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
with copies to:
Xxxxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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/ Xxxxx X. Xxxxxx, Ph.D
--------------------------------
Name: Xxxxx X. Xxxxxx, Ph.D
Title: President and Chief Executive
Officer
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
DURUS CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx, Managing Member
DURUS CAPITAL MANAGEMENT (NA), LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx, Managing Member
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