Amendment No. 3 to Investors' Rights Agreement by Esperion Therapeutics, Inc. and Purchasers

Summary

This amendment, dated February 22, 2000, updates the Investors' Rights Agreement between Esperion Therapeutics, Inc. and its investors, including new additional purchasers. The amendment adds provisions for Series D Preferred Shares, revises registration rights, updates definitions, and clarifies certain rights and obligations of Series C and Series D shareholders. It also confirms that new investors are bound by the agreement and specifies that changes require the consent of affected Series C and D shareholders. The agreement is governed by Delaware law and becomes effective upon approval by holders of at least 51% of the preferred shares.

EX-10.16 12 0012.txt AMENDMENT NO. 3 INVESTORS' RIGHTS AGREEMENT Exhibit 10.16 ESPERION THERAPEUTCS, INC. AMENDMENT NO. 3 TO THE INVESTORS' RIGHTS AGREEMENT This AMENDMENT NO. 3 TO THE INVESTORS' RIGHTS AGREEMENT (this "Agreement") is made and entered into as of February 22, 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 Original Agreement was amended as of August 11, 1998 pursuant to Amendment No. 2 to the Investors' Rights Agreement ("Amendment No. 2"), to provide for the addition of the Additional Purchasers as Purchasers thereunder with respect to the issuance of the Series C 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 D 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 7,2000 (the "Series C Agreement"), the Securities Purchase Agreement dated as of February 22, 2000 (the "Series D Agreement"), the Restated Certificate, this Agreement and the other Ancillary Agreements (as defined in the Series A Agreement, the Series B Agreement, the Series C Agreement and the Series D Agreement). (c) A new definition is hereby added to Section 1 of the Original Agreement, to read in its entirety as follows: "Series D Shares" Shall mean the Company's Series D 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 "January 7,2003" in subsection (A) thereof and subsitute therefor the date "February 22, 2003," (ii) to amend subsection (B) after the words "then outstanding Registrable Securities" to read as Follows: other than the Series C and Series D Shares (or any Common Stock issued or issuable upon conversion thereof, with respect thereto or in exchange therefor) (the "Non-Series C/Non-Series D Initiating Holders") or 30% of the then outstanding Registrable Securities consisting of Series C Shares and Series D Shares (and any Common Stock issued or issuable upon conversion thereof, with respect thereto or in exchange therefor) (the "SeriesC/Series D Initating Holders"), and with reference to either or both Series C/Series D Initiating Holders and/or the Non-Series C/Non- Series D 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. 2 5. Termination of Financial Information Rights. Section 2.3 of the Original ------------------------------------------- Agreement is hereby amended to delete the term "Series C" and substitute therefor the term "Series D". 6. Wavier of Antidilution Adjustment. Section 3.6 of the Orginal Agreement --------------------------------- is hereby amended to delete the words "Series A Shares, Series B Shares or Series C Shares" in subsection (a)(3),(b),(c) and (d) thereof and substitute therefor the words "Series A Shares, Series B Shares, Series C Shares or Series D Shares." 7. Entire Agreement;Amendment; Wavier. Section 4.3 is hereby amended to ---------------------------------- amend and restate the proviso at the end of the second sentence thereof to read in its entirty as follows ; provided that no such amendemnt, waiver, discharge or termination may amend or modify the provisions of this Section 4.3,amend, modify or terminate the amount of the Series Liquidation Value or the Series D Liquidation Value (as such terms are defined in the Restated Certificate0 or the respective rights of the holders of the Series C Share or the Series D Shares relating thereto, or subordinate the rights of the holders of the Series C Shares or the Series D 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 or the Series D Shares, respectively. 8. 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. 9. 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. 10. 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. 11. 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. 3 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 S. Newton ----------------------------------- Name: Roger S. Newton Title: President & CEO THE PURCHASERS: CANAAN EQUITY II L.P. By: Canaan Equity Partners II LLC, Its General Partner By: /s/ Guy M. Russo ----------------------------------- Name: Guy M. Russo Title: Member/Manager CANAAN EQUITY II L.P. (QP) By: Canaan Equity Partners II LLC, Its General Partner By: /s/ Guy M. Russo ----------------------------------- Name: Guy M. Russo Title: Member/Manager CANAAN EQUITY II ENTREPRENEURS LLC By: Canaan Equity Patners II LLC, Its Manager By: /s/ Guy M. Russo -------------------------------- Name: Guy M.Russo Title: Member/Manager 4 TL VENTURES III L.P. By: TL Ventures III Mangement L.P., its general partner By: TL Ventures III LLC, its general partner By: /s/ Christopher Moller -------------------------- Name: Christopher Moller 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: /s/ Christopher Moller -------------------------- Name: Christopher Moller Title: Vice President TL VENTURES III INTERFUND L.P. By: TL Ventures III LLC, its general partner By: /s/ Christopher Moller -------------------------- Name: Christopher Moller Title: Managing Director TL VENTURES IV L.P. By: TL Ventures IV Management L.P., its general partner By: /s/ Christopher Moller ------------------------- Name: Christopher Moller Title: Managing Director 5 TL VENTURES IV INTERFUND L.P. By: TL Ventures IV LLC, its general partner By: /s/ Christopher Moller ------------------------ Name: Christopher Mollen Title: Managing Director OAK INVESTMENTS PARTNERS VII, LIMITED PARTNERSHIP By: OAK ASSOCIATES VII,LLC its general partner By: __________________________ A Member OAK VII AFFILIATES FUND, LIMITED PARTNERSHIP By: OAK VII AFFILIATES, LLC its general partner By: __________________________ A Member AVALON TECHNOLOGY By: /s/ [ILLEGIBLE] -------------------------- A Member 6 By: /s/ [ILLEGIBLE] ---------------------------- A Member OAK VII AFFILIATES FUND, LIMITED PARTNERSHIP By: OAK VII AFFILIATES, LLC Its General Partner By: /s/ [ILLEGIBLE] ---------------------------- A Member AVALON INVESTMENTS By: _______________________________ A Member HEALTHCAP KB By: HealthCap AB its general partner By: /s/ Magnus Persson ------------------------------- Magnus Persson Director By: /s/ Staffan Lindstrand ------------------------------- Staffan Lindstrand Director HEALTHCAP COINVEST KB By: HealthCap AB its general partner By: /s/ Magnus Persson -------------------------- Magnus Persson Director By: /s/ Staffan Lindstrand -------------------------- Staffan Lindstrand Director __________________________ Cesare Sirtori, M.D. SERVENTIA SA By: _______________________________________ Franceso Ghiolidi as Sole Administrator Bioinventor Foundation By: /s/ Lennart Philipson -------------------------- Lennart Philipsson as President Roger Newton, Ph.D. ________________________________ Lennart Philipson /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, M.D. -------------------------------- Sandip Mukherjee, M.D. _________________________________ Seth A. Rudnick NOVARE KAPTIAL AB By: _____________________________ Staffan Josephson Senior Investment Manger 8 Roger Newton, Ph.D. SCHEER INVWESTMENT HOLDINGS II, L.L.C. By: ------------------------------------ David I. Scheer, Managing Member Anders Wiklund Sandip Mukherjee, M.D. --------------------------------------- Seth A. Rudnick NOVARE KAPITAL AB By: /s/ Staffan Josephson ------------------------------------ Staffan Josephson, Senior Investment Manager LAGRUMMET 621 AB (Reg no ###-###-####) By: /s/ Pontus Ekman ------------------------------------ Pontus Ekman EXHIBIT A PURCHASERS ---------- TL Ventures III L.P. TL Ventures III Offshore L.P. TL Ventures III Interfund L.P. Oak Investment Partners VII, L.P. Oak VII Affiliates Fund, L.P. Scheer Investment Holdings II, L.L.C. ADDITIONAL PURCHASERS (SERIES B) -------------------------------- HealthCap KB Health CoInvest KB Cesare Sirtori, M.D. ADDITIONAL PURCHASERS (SERIES C) -------------------------------- Canaan Equity II L.P. Canaan Equity II L.P. (QP) Canaan Equity II Entrepreneurs LLC Seth A. Rudnick TL Ventures IV L.P. TL Ventures IV Interfund L.P. Serventia SA Avalon Investments Lennart Philipsson Roger Newton, Ph.D. Anders Wiklund 9 Sandip Mukherjee, M.D. ADDITIONAL PURCHASERS (SERIES D) -------------------------------- Novare Kapital AB Lagrummet 621 10