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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.
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(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.
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"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
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Stock, par value $0.01 per share.
2. Exhibit A. Exhibit A to the Original Agreement is amended and restated
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in the form of Exhibit A hereto.
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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.
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5. Termination of Financial Information Rights. Section 2.3 of the Original
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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
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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
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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,
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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
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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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
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<PAGE>
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
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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
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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
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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.
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________________________________
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
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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 556579-4152)
By: /s/ Pontus Ekman
------------------------------------
Pontus Ekman
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EXHIBIT A
PURCHASERS
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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
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Sandip Mukherjee, M.D.
ADDITIONAL PURCHASERS (SERIES D)
--------------------------------
Novare Kapital AB
Lagrummet 621
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