Exhibit 4
LOCK-UP LETTER AGREEMENT
XXXXXX BROTHERS INC.
As Representative of the
Several underwriters
c/x XXXXXX BROTHERS INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of shares (the
"Shares") of Common Stock, par value $.001 per share (the "Common Stock"), of
Esperion Therapeutics, Inc. (the "Company") and that the Underwriters propose to
reoffer the Shares to the public (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc., the undersigned will not, directly or indirectly, (1) offer for
sale, sell, pledge, or otherwise dispose of (or enter into any transaction or
device that is designed to, or could reasonably be expected to, result in the
disposition by the undersigned at any time in the future of) any shares of
Common Stock (including, without limitation, shares of Common Stock that may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission and shares of Common
Stock that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Common Stock (other than the Shares) owned
by the undersigned on the date of execution of this Lock-Up Letter Agreement or
on the date of the completion of the Offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, on or before January 31, 2004; provided, however, that a disposition
in accordance with the terms of the Underwriting Agreement shall not be
considered a disposition covered by this Lock-Up Letter Agreement; and provided
further that the undersigned may transfer shares of Common Stock to the
shareholders of Durus Life Sciences International Fund Ltd. and to members of
Durus Life Sciences Fund, LLC if (a) such shareholders and members agree in
writing to be bound by the provisions of this Agreement with respect to the
shares so distributed to them and (b) the undersigned (i) makes all required
regulatory filings in connection with each such disposition and (ii) if
requested by the Company or the Underwriters, cooperates with the Company in the
issuance of a press release related to any such disposition.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not intend
to proceed with the Offering, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Shares, the undersigned will be released from his her or her
obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company, the Underwriters and the
stockholders selling shares in the Offering will proceed with the Offering in
reliance on this Lock-Up Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents reasonably
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
Durus Capital Management (N.A.), LLC
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Durus Capital Management, LLC
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Managing Member
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title:
Dated: July 31, 2003
