Amendment No. 2 to Investors' Rights Agreement by and among Esperion Therapeutics, Inc. and Purchasers

Summary

This amendment, dated January 7, 2000, updates the Investors' Rights Agreement between Esperion Therapeutics, Inc. and its investors. It adds new investors related to the issuance of Series C Preferred Shares, revises certain definitions, adjusts registration rights, and modifies financial thresholds and transfer conditions. The amendment also clarifies the rights of Series C shareholders and ensures that new investors are bound by the original agreement. The agreement is governed by Delaware law and becomes effective upon approval by holders of at least 51% of the preferred shares.

EX-10.15 11 0011.txt AMENDMENT NO. 2 TO INVESTORS' RIGHTS AGREEMENT Exhibit 10.15 ESPERION THERAPEUTCS, INC. AMENDMENT NO. 2 TO THE INVESTORS' RIGHTS AGREEMENT This AMENDMENT NO. 2 TO THE INVESTORS' RIGHTS AGREEMENT (this "Agreement") is made and entered into as of January 7, 2000, by and among ESPERION THERAPEUTICS, INC., a Delaware corporation (the "Company"), the Purchasers (as such term is defined in the Original Agreement defined below), and the Additional Purchasers set forth on Exhibit 1 attached hereto under the heading "Additional Purchasers." WHEREAS, the Company and the Purchasers are parties to an Investors' Rights Agreement made and entered into as of July 6, 1998 (the "Original Agreement"); and WHEREAS, the Original Agreement was amended as of August 11, 1998 pursuant to Amendment No. 1 to the Investors' Rights Agreement ("Amendment No. 1"), to provide for the addition of the Additional Purchasers as Purchasers thereunder with respect to the issuance of the Series B Shares; and WHEREAS, the parties to the Original Agreement, as amended, desire to amend further such agreement, to provide for the addition of the Additional Purchasers as Purchasers thereunder with respect to the issuance of the Series C Shares, among other things, on the terms and conditions stated herein and in the Original Agreement as amended; NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Defined Terms. (a) Capitalized terms used and not otherwise defined in this Agreement shall have the meanings given to such terms in the Original Agreement. (b) The following definitions set forth in Section 1 of the Original Agreement are hereby amended and restated as follows: "Preferred Shares" shall mean the Series A Shares, the Series B Shares, the Series C Shares and shares of any additional series of preferred stock of the Company, the issuance of which is approved by the holders of at least 51 % of the Preferred Shares as required by the Restated Certificate. "Restated Certificate" shall mean the Company's Amended and Restated Certificate of Incorporation, as amended from time to time. "Transaction Documents" shall mean, collectively, the Series A Agreement, the Securities Purchase Agreement dated as of August 11, 1998 (the "Series B Agreement"), the Securities Purchase Agreement dated as of January , 2000 (the "Series C Agreement"), the Restated Certificate, this Agreement and the other Ancillary Agreements (as defined in the Series A Agreement, the Series B Agreement and the Series C Agreement). (c) The definition of the term "New Securities" set forth in Section 1 of the Original Agreement is hereby amended to delete the number "380,000" in subsection (vi) thereof and substitute therefor the number "680,000." (d) A new definition is hereby added to Section 1 of the Original Agreement, to read in its entirety as follows: "Series C Shares" shall mean the Company's Series C Convertible Preferred Stock, par value $0.01 per share. 2. Exhibit A. Exhibit A to the Original Agreement is amended and restated in the form of Exhibit A hereto. 3. Request for Registration. Section 1.5(a) of the Original Agreement is hereby amended (i) to delete the date "July 6, 2002" in subsection (A) thereof and substitute therefor the date "January , 2003," (ii) to delete the defined term "("Initiating Holders")" and add after the words "then outstanding Registrable Securities" in subsection (B) thereof the words "other than the Series C Shares (or any Common Stock issued or issuable upon conversion thereof, with respect thereto or in exchange therefor) (the "Non-Series C Initiating Holders") or 30% of the then outstanding Registrable Securities consisting of Series C Shares (and any Common Stock issued or issuable upon conversion thereof, with respect thereto or in exchange therefor) (the "Series C Initiating Holders"), and with reference to either or both the Series C Initiating Holders and/or the Non-Series C Initiating Holders, the "Initiating Holders")" and (iii) to amend and restate subsection (C) thereof to read in its entirety as follows: (C) After the Company has effected two such registrations pursuant to this Section 1.5, one such registration at the request of the Non-Series C Initiating Holders and one such registration at the request of the Series C Initiating Holders, which registrations have been declared or ordered effective and pursuant to which the securities have been sold; or 4. Additional Information and Rights. Section 2.2(a) of the Original Agreement is hereby amended to add the words "to such Holder" after the word "issued" therein. 5. Termination of Financial Information Rights. Section 2.3 of the Original Agreement is hereby amended to delete the term "Series B" and the number "$15,000,000" therein and substitute therefor the term "Series C" and the number "$30,000,000," respectively. 6. Employee and Other Stock Agreements. Section 2.5(a)(ii) of the Original Agreement is hereby amended to delete the number "380,000" and substitute therefor the number "680,000." 7. Section 2.16 of the Original Agreement is hereby amended to add the words "to such Holder" after the word "issued" therein. 8. Waiver of Antidilution Adjustment. Section 3.6 of the Original Agreement is hereby amended to delete the words "Series B Shares" in subsection (a)(3), (b), (c) and (d) thereof and substitute therefor the words "Series A Shares, Series B Shares or Series C Shares." 9. Successors and Assigns; Assignment of Rights. Section 4.2 of the Original Agreement is hereby amended to add at the end of the first sentence thereof the following: ;provided that the registration rights of a Holder of any Registrable Securities, as described in Sections 1.5 through 1.15 hereof, may be transferred or assigned only to a transferee or assignee who (i) acquires at least 500,000 shares of Registrable Securities, (ii) is already a Holder of Registrable Securities and already possesses such registration rights, (iii) acquires ten percent (10%) or more of the outstanding capital stock of the Company and the Company is given prior written notice thereof or (iv) is a transferee described in Section 1.4(A), (B), (C), (D) or (E) hereof. 10. Entire Agreement; Amendment; Waiver. Section 4.3 is hereby amended to add at the end of the second sentence thereof the following: provided that no such amendment, waiver, discharge or termination may amend or modify the provisions of this Section 4.3, amend, modify or terminate the amount of the Series C Liquidation Value (as such term is defined in the Restated Certificate) or the respective rights of the holders of the Series C Shares relating thereto, or subordinate the rights of the holders of the Series C Shares to the holders of any other class or series of capital stock of the Company in existence on the date hereof, in any such case without the prior written consent of each holder of the Series C Shares. 11. Joinder. The Additional Purchasers hereby agree to be bound by and subject to the terms and conditions of the Original Agreement and the parties hereto agree that the Additional Purchasers shall be entitled to all of the rights and benefits of the Purchasers under the Original Agreement. 12. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Delaware, as applied to agreements among Delaware residents entered into and to be performed entirely within Delaware. 13. Effective Date. In accordance with the terms of the Original Agreement, this Agreement will become effective upon execution by the Company and the holders of at least fifty one percent (51 %) of the Preferred Shares. 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties hereto have executed this Investors' Rights Agreement effective as of the day and year first above written. THE COMPANY: ESPERION THERAPEUTICS, INC. By: /s/ Roger Newton ----------------------------------- Name: Roger Newton Title: President and CEO THE PURCHASERS: CANAAN EQUITY II L.P. By: Canaan Equity Partners II LLC, Its Member/Manager By: ----------------------------------- Name: Title: TL VENTURES III L.P. By: TL VENTURES III Management L.P., its general partner By: TL VENTURES III LLC, its general partner By: ------------------------------ Name: Title: Managing Director TL VENTURES III OFFSHORE L.P. By: TL VENTURES III Offshore Partners L.P., its general partner By: TL VENTURES III Offshore Ltd., its general partner By: ------------------------------ Name: Title: Vice President TL VENTURES III INTERFUND L.P. By: TL VENTURES III LLC, its general partner By: ------------------------------ Name: Title: TL VENTURES IV L.P. By: TL VENTURES IV Management L.P., its general partner By: ------------------------------ Name: Title: TL VENTURES IV INTERFUND L.P. By: TL VENTURES IV LLC, its general partner By: ------------------------------ Name: Title: OAK INVESTMENT PARTNERS VII, LIMITED PARTNERSHIP By: OAK ASSOCIATES VII, LLC Its General Partner By: ------------------------------ A Member OAK AFFILIATES FUND, LIMITED By: OAK VII AFFILIATES, LLC Its General Partner By: ------------------------------ A Member TECNO VENTURE MANAGEMENT By: ------------------------------ A Member AVALAON INVESTMENTS By: ------------------------------ A Member HEALTHCAP KB By: HealthCap AB its general partner By: /s/ Bjorn Odlander ------------------------------ Bjorn Odlander Director By: /s/ Peder Fredrikson ------------------------------ Peder Fredrikson Director HEALTHCAP COINVEST KB By: HealthCap AB its general partner By: /s/ Bjorn Odlander ------------------------------ Bjorn Odlander Director By: /s/ Peder Fredrikson ------------------------------ Peder Fredrikson Director /s/ Cesare Sirtori ------------------------------ Cesare Sirtori, M.D. /s/ Lennart Philipsson ------------------------------ Lennart Philipsson /s/ Roger Newton ------------------------------ Roger Newton, Ph.D. SCHEER INVESTMENT HOLDINGS II, L.L.C. By: /s/ David I. Scheer ------------------------------ David I. Scheer Managing Member /s/ Anders Wiklund ------------------------------ Anders Wiklund /s/ Sandip Mukherjee ------------------------------ Sandip Mukherjee, M.D. /s/ Seth A. Rudnick ------------------------------ Seth A. Rudnick SCHEDULE OF PURCHASERS - -------------------------------------------------------------------------------- Purchaser's Name No. of Cash Consideration ---------------- ------ ------------------ and Address Series C Shares - -------------------------------------------------------------------------------- Canaan Equity II, L.P. 2,280,093 $4,925,000.88 105 Rowayton Avenue Rowayton, Connecticut 06853 - -------------------------------------------------------------------------------- Seth A. Rudnick 34,722 74,999.52 6330 Quadrangle Drive, Suite 200 Chapel Hill, North Carolina 27514 - -------------------------------------------------------------------------------- TL Ventures III, L.P. 1,491,055 3,220,678.80 800 Safeguard Building 435 Devon Park Drive Wayne, Pennsylvania 19087-1945 - -------------------------------------------------------------------------------- TL Ventures III Offshore L.P. 312,110 674,157.80 800 Safeguard Building 435 Devon Park Drive Wayne, Pennsylvania 19087-1945 - -------------------------------------------------------------------------------- TL Ventures III Interfund L.P. 48,687 105,163.92 800 Safeguard Building 435 Devon Park Drive Wayne, Pennsylvania 19087-1945 - -------------------------------------------------------------------------------- TL Ventures IV L.P. 902,088 1,948,510.08 800 Safeguard Building 435 Devon Park Drive Wayne, Pennsylvania 19087-1945 - -------------------------------------------------------------------------------- TL Ventures IV Interfund L.P. 23,838 51,490.08 800 Safeguard Building 435 Devon Park Drive Wayne, Pennsylvania 19087-1945 - -------------------------------------------------------------------------------- Oak Investment Partners VII, LP 1,806,481 3,901,998.96 1 Gorham Island Westport, Connecticut 06880 - -------------------------------------------------------------------------------- Oak VII Affiliates Fund, LP 45,371 98,001.36 1 Gorham Island Westport, Connecticut 06880 - -------------------------------------------------------------------------------- Tecno Venture Management 1,851,852 4,000,000.32 101 Arch Street, Suite 1950 Boston, Massachusetts 02110 - -------------------------------------------------------------------------------- Avalon Investments 1,157,408 2,500,001.28 201 West Main Street Ann Arbor, Michigan 48104 - -------------------------------------------------------------------------------- HealthCap KB 583,335 1,260,003.60 c/o Odlander, Fredrikson & Co. AB - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Sturegatan 34 S-O 114 36 Stockholm, Sweden - -------------------------------------------------------------------------------- HealthCap CoInvest KB 805,554 1,739,996.64 c/o Odlander, Fredrikson & Co. AB Sturegatan 34 S-O 114 36 Stockholm, Sweden - -------------------------------------------------------------------------------- Cesare Sirtori 462,963 1,000,000.08 Institute of Pharmacological Sciences Via Balzaretti 9 20133 Milano Italy - -------------------------------------------------------------------------------- Lennart Philipsson 102,315 221,000.40 Karolinska Institute Department of Cell and Molecular Biology von Eulers vag 3 SE-17177 Stockholm - -------------------------------------------------------------------------------- Roger Newton 95,741 0 c/o Esperion Therapeutics Inc. 3621 South State Street 695 KMS Place Ann Arbor, Michigan 48108 - -------------------------------------------------------------------------------- Scheer Investment Holdings II, LLC 46,296 99,999.36 250 West Main Street Branford, Connecticut 06405 - -------------------------------------------------------------------------------- Anders Wiklund 31,673 0 928 Sunset Ridge Bridgewater, New Jersey - -------------------------------------------------------------------------------- Sandip Mukherjee 23,149 50,001.84 71 Quail Run Madison, Connecticut 06433 - -------------------------------------------------------------------------------- TOTALS 12,104,731 25,871,004.72 - --------------------------------------------------------------------------------