-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HhbadXgitR/h+8qBzRekMc49LH2mGk6nw1XPytHD07jCY0fnWijxEf9FPgZcKDSr vL/HbvzwwpNu5oOi4sGKiQ== 0000950124-03-002468.txt : 20030729 0000950124-03-002468.hdr.sgml : 20030729 20030729115707 ACCESSION NUMBER: 0000950124-03-002468 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20030729 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030729 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ESPERION THERAPEUTICS INC/MI CENTRAL INDEX KEY: 0001066745 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 383419139 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-16033 FILM NUMBER: 03807678 BUSINESS ADDRESS: STREET 1: 3621 S STATE STREET 695KMS PLACE STREET 2: 734-332-0506 CITY: ANN ARBOR STATE: MI ZIP: 48108 MAIL ADDRESS: STREET 1: 3621 STATE STREET STREET 2: 695 KMS PLACE CITY: ANN ARBOR STATE: MI ZIP: 48108 8-K 1 k78587e8vk.txt CURRENT REPORT DATED JULY 29, 2003 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): July 29, 2003 ------------- ESPERION THERAPEUTICS, INC. (Exact name of registrant as specified in its charter) Delaware 001-16033 38-3419139 - -------------------------------------------------------------------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 3621 South State St., 695 KMS Place, Ann Arbor, MI 48108 -------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (734) 332-0506 Item 5. Other Events. On July 29, 2003, the Board of Directors of Esperion Therapeutics, Inc. ("Esperion") approved an amendment ("Amendment No. 2") to the Rights Agreement dated April 18, 2002, as amended by Amendment No. 1 dated November 26, 2002, between Esperion and StockTrans, Inc., as rights agent (the "Rights Agreement"). Amendment No. 2 revises the definition of "Acquiring Person" to exclude the Sacane Group (as that term is defined in Amendment No. 2) unless and until the earlier of such time as the Sacane Group, together with all Affiliates and Associates, directly or indirectly, becomes the Beneficial Owner of more than 33% of the Common Shares then outstanding or ceases to hold any of the Common Shares of which it is the Beneficial Owner without any intention of changing or influencing control of the Company. On July 29, 2003, the Board of Directors of Esperion also approved a Voting and Transfer Restriction Agreement between Esperion and the Sacane Group (as such term is defined in the Voting and Transfer Restriction Agreement) that restricts the Sacane Group's voting rights and the manner in which the Sacane Group and its affiliates and associates (as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) can transfer the shares of Esperion common stock over which Sacane Group and its affiliates and associates have claimed beneficial ownership. Item 7. Financial Statements and Exhibits. (c) Exhibits. Exhibit 4.4 Amendment No. 2 to Rights Agreement, dated as of July 29, 2003, between Esperion Therapeutics, Inc. and StockTrans, Inc., as Rights Agent. Exhibit 4.5 Voting and Transfer Restriction Agreement by and among Esperion Therapeutics, Inc., Scott Sacane, Durus Capital Management, LLC and Durus Capital Management (NA), LLC, dated as of July 29, 2003. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. ESPERION THERAPEUTICS, INC. By: /s/ Roger S. Newton, Ph.D ----------------------------------------- Name: Roger S. Newton, Ph.D Title: President and Chief Executive Officer Dated: July 29, 2003 EXHIBIT INDEX EXHIBIT NO. EXHIBIT DESCRIPTION Exhibit 4.4 Amendment No. 2 to Rights Agreement, dated as of July 29, 2003, between Esperion Therapeutics, Inc. and StockTrans, Inc., as Rights Agent. Exhibit 4.5 Voting and Transfer Restriction Agreement by and among Esperion Therapeutics, Inc., Scott Sacane, Durus Capital Management, LLC and Durus Capital Management (NA), LLC, dated as of July 29, 2003. EX-4.4 3 k78587exv4w4.txt AMENDMENT NO. 2 TO RIGHTS AGREEMENT EXHIBIT 4.4 AMENDMENT NO. 2 TO RIGHTS AGREEMENT This Amendment No. 2 dated July 29, 2003 ("Amendment No. 2") to the Rights Agreement dated April 18, 2002 between Esperion Therapeutics, Inc., a Delaware corporation (the "Company"), and StockTrans, Inc., a Pennsylvania corporation, as rights agent (the "Rights Agent"), as amended by Amendment No. 1 dated November 26, 2002 ("Amendment No. 1") (the "Rights Agreement"), is made by and between the Company and the Rights Agent. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Rights Agreement. RECITALS WHEREAS, pursuant to Amendment No. 1, the Company amended the Rights Agreement to modify the definition therein of Acquiring Person to exclude a certain stockholder from such definition under specified circumstances; WHEREAS, the Board of Directors of the Company has determined that it is in the best interests of the Company and its stockholders to amend the Rights Agreement to further modify the definition therein of Acquiring Person to exclude such stockholder from such definition under additional specified circumstances; and WHEREAS, the Company has determined to amend the Rights Agreement in accordance with Section 27 of the Rights Agreement and the Rights Agent is directed to join in this Amendment No. 2 to the Rights Agreement as set forth herein. AGREEMENT NOW THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows: 1. The definition of Acquiring Person in Section 1 of the Rights Agreement, as such definition was amended by Amendment No. 1, is hereby amended to read in its entirety as follows: "Acquiring Person" shall mean any Person who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of 15% or more of the Common Shares then outstanding, but shall not include the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan. Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as the result of an acquisition of Common Shares by the Company which, by reducing the number of Common Shares outstanding, increases the proportionate number of Common Shares beneficially owned by such Person to 15% or more of the Common Shares then outstanding; provided, however, that if a Person shall become the Beneficial Owner of 15% or more of the then outstanding Common Shares by reason of Common Shares purchased by the Company and shall, after the Company announces such share purchases, become the Beneficial Owner of any additional Common Shares, then such Person shall be deemed to be an "Acquiring Person." Notwithstanding the foregoing, if a majority of the Board of Directors determines in good faith that a Person who would otherwise be an "Acquiring Person," as defined pursuant to the foregoing provisions of this paragraph, has become such inadvertently and without any intention of changing or influencing control of the Company, and such Person divests as promptly as practicable after being advised of such determination a sufficient number of Common Shares so that such Person would no longer be an "Acquiring Person," as defined pursuant to the foregoing provisions of this paragraph, then such Person shall not be deemed to be an "Acquiring Person" for purposes of this Agreement. Notwithstanding anything to the contrary contained in this definition, Scott Sacane ("Sacane"), who is the managing member of Durus Capital Management, LLC and Durus Capital Management (NA), LLC (together, "Durus," and Durus, together with Sacane, referred to herein as the "Sacane Group") shall not be deemed to be an "Acquiring Person" unless and until the earlier of such time as the Sacane Group, together with all Affiliates and Associates, directly or indirectly, becomes the Beneficial Owner of more than 33% of the Common Shares then outstanding or ceases to hold any of the Common Shares of which it is the Beneficial Owner without any intention of changing or influencing control of the Company;" Except as amended hereby, the Rights Agreement, as amended by Amendment No. 1, remains in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 by their duly authorized representatives effective the date set forth above. ESPERION THERAPEUTICS, INC. STOCKTRANS, INC. By: /s/ Roger S. Newton, Ph.D By: /s/ Gina Hardin -------------------------- ----------------- Name: Roger S. Newton, Ph.D Name: Gina Hardin Title: President and Title: Vice President Chief Executive Officer Duly Authorized Duly Authorized Date: July 29, 2003 Date: July 29, 2003 EX-4.5 4 k78587exv4w5.txt VOTING AND TRANSFER RESTRICTION AGREEMENT EXHIBIT 4.5 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"), Scott Sacane ("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. 2 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 3 under the Exchange Act, or induce or attempt to induce any other person to initiate any stockholder proposal; (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. 4 (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: (a) if to the Company, to: 5 Esperion Therapeutics, Inc. 3621 South State Street 695 KMS Place Ann Arbor, Michigan 48108 Attention: General Counsel Telephone: (734) 332-0506 Facsimile: (734) 622-8334 with copies to: Linda Griggs, Esquire Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave, N.W. Washington, DC 20004 Telephone: (202) 739-3000 Facsimile: (202) 739-3001 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 Scott Sacane c/o Durus Capital Management, LLC 20 Marshall Street Suite 320 Norwalk, Connecticut 06854 Telephone: (203) 899-3100 Facsimile: (203) 899-3125 with copies to: William Natbony, Esq. Katten Muchin Zavis Rosenman 575 Madison Avenue New York, New York 10022 Telephone: (212) 940-8930 Facsimile: (212) 940-8994 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. 6 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. [The remainder of the page intentionally left blank.] 7 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/ Roger S. Newton, Ph.D -------------------------------- Name: Roger S. Newton, Ph.D Title: President and Chief Executive Officer /s/ Scott Sacane --------------------------------------- Scott Sacane DURUS CAPITAL MANAGEMENT, LLC By: /s/ Scott Sacane -------------------------------- Name: Scott Sacane, Managing Member DURUS CAPITAL MANAGEMENT (NA), LLC By: /s/ Scott Sacane -------------------------------- Name: Scott Sacane, Managing Member 8 -----END PRIVACY-ENHANCED MESSAGE-----