Form 8-K
8-K — Esperion Therapeutics, Inc.
Accession: 0001104659-26-082926
Filed: 2026-07-13
Period: 2026-07-13
CIK: 0001434868
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Entry into a Material Definitive Agreement
Item: Termination of a Material Definitive Agreement
Item: Completion of Acquisition or Disposition of Assets
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
Item: Material Modifications to Rights of Security Holders
Item: Changes in Control of Registrant
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item: Financial Statements and Exhibits
Documents
8-K — tm2620034d3_8k.htm (Primary)
EX-3.1 — EXHIBIT 3.1 (tm2620034d3_ex3-1.htm)
EX-3.2 — EXHIBIT 3.2 (tm2620034d3_ex3-2.htm)
EX-4.1 — EXHIBIT 4.1 (tm2620034d3_ex4-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2620034d3_ex10-1.htm)
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8-K — FORM 8-K
8-K (Primary)
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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 13, 2026
Esperion
Therapeutics, Inc.
(Exact name of Registrant as Specified in Its
Charter)
Delaware
001-35986
26-1870780
(State
or Other Jurisdiction of
Incorporation)
(Commission
File Number)
(IRS
Employer
Identification No.)
3891
Ranchero Drive, Suite 150
Ann
Arbor, Michigan
48108
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s Telephone Number, Including
Area Code: (734) 887-3903
Not Applicable
(Former Name or Former Address, if Changed Since
Last Report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered
pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, par value $0.001 per share
ESPR
NASDAQ Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Introductory Note.
As previously disclosed, on May 1, 2026, Esperion Therapeutics, Inc.
(the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Essence
Parent Inc., a Delaware corporation (“Parent”), and Essence MergerCo Inc., a Delaware corporation and wholly owned
subsidiary of Parent (“MergerCo”), which provides for the merger of MergerCo with and into the Company, with the Company
surviving the merger as a wholly owned subsidiary of Parent (the “Merger”).
On July 13, 2026, on the terms and subject to the conditions set forth
in the Merger Agreement and pursuant to and in accordance with the applicable provisions of the Delaware General Corporation Law (the
“DGCL”), the Merger was consummated. At the effective time of the Merger (the “Effective Time”),
the separate corporate existence of MergerCo ceased, and the Company survived the Merger as a wholly owned subsidiary of Parent.
Item 1.01 Entry into a Material Definitive Agreement.
Contingent Value Rights Agreement
On July 13, 2026, pursuant to the Merger Agreement, Parent and the
Company entered into a Contingent Value Rights Agreement with the Rights Agent listed therein (the “CVR Agreement”).
Each contingent value right (“CVR”) represents the right of the holder to participate in contingent cash payments
of up to $100 million in the aggregate, without interest and less any applicable tax withholding, upon the achievement of specified milestones
during the applicable milestone periods as set forth in the CVR Agreement, on the terms and subject to the conditions set forth in the
Merger Agreement and the CVR Agreement. The right to the contingent cash payments as evidenced by the CVR Agreement is a contractual
right only and is not transferable, except in the limited circumstances specified in the CVR Agreement.
The foregoing description of the CVR Agreement does not purport to
be complete, and is subject to, and qualified in its entirety by reference to, the full text of the CVR Agreement, a copy of which is
filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Supplemental Indenture
On July 13, 2026, the Company, Parent and U.S. Bank Trust Company,
National Association, as trustee (the “Trustee”), entered into the Second Supplemental Indenture (the “Second
Supplemental Indenture”) to the Indenture, dated as of December 17, 2024, between the Company and the Trustee (the “Base
Indenture”), as supplemented by the First Supplemental Indenture, dated as of January 27, 2025, between the Company and the
Trustee (the “First Supplemental Indenture” and the Base Indenture as supplemented by the First Supplemental Indenture
and the Second Supplemental Indenture, the “Indenture”), relating to the Company’s 5.75% Convertible Senior
Subordinated Notes due 2030 (the “Notes”).
Pursuant to the terms of the Indenture, the Second Supplemental
Indenture was entered into in connection with the consummation of the Merger. The Second Supplemental Indenture provides
that, from and after the Effective Time and until the Maturity Date (as defined in the Indenture), each $1,000 principal amount of Notes will be convertible into
(i) $1,032.68 in cash and (ii) 326.7974 CVRs, in each case per $1,000 principal amount of Notes so converted; provided that Parent
and/or the Company will not be obligated to issue any fractional CVRs.
As a result of the Merger, a Make-Whole Fundamental Change (as
defined in the Indenture) will have occurred under the terms of the Indenture. Accordingly, a Holder who converts its Notes in
connection with such Make-Whole Fundamental Change will be entitled to receive $1,232.62 in cash (reflecting the requisite increase
to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03 of the Indenture) and 390.0701 CVRs per $1,000
principal amount of Notes so converted; provided that Parent and/or the Company will not be obligated to issue any fractional
CVRs.
The foregoing description of the Second Supplemental Indenture
does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text of the Indenture. A copy of the Base Indenture was filed as Exhibit 4.1 to the Current Report on
Form 8-K filed by the Company on December 18, 2024, a copy of the First Supplemental Indenture was filed as Exhibit 10.1 to the Quarterly Report on Form 10-Q, filed on May 8, 2025 and a copy of the Second Supplemental Indenture is filed as Exhibit 4.3
hereto, and the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture are incorporated herein by reference.
Loan Agreement
On July 13, 2026, the Company entered into that certain loan agreement,
by and among MergerCo, as initial borrower, the Company, as successor borrower, Parent, the guarantors party thereto or otherwise party
thereto from time to time, BioPharma Credit PLC, a public limited company incorporated under the laws of England and Wales, as collateral
agent, and BPCR Limited Partnership, a limited partnership established under the laws of England and Wales, and BioPharma Credit Investments
V (Master) LP, a Cayman Islands exempted limited partnership, as lenders and each letter of credit issuer thereunder from time to time
party thereto (the “Loan Agreement”).
The information set forth in the Introductory Note of this Current
Report on Form 8-K is incorporated by reference into this Item 1.01.
Item 1.02 Termination of a Material Definitive Agreement.
On July 13, 2026, in connection with the entry into the Loan Agreement
described in Item 1.01 and the consummation of the Merger, the Company repaid in full all indebtedness and other obligations outstanding
under, and terminated, that certain Credit Agreement, dated as of December 13, 2024 (as amended by that certain First Amendment to Credit
Agreement, dated as of April 2, 2026), by and among the Company, as borrower, GLAS USA LLC, a New Jersey limited liability company, and
GLAS AMERICAS LLC, a New York limited liability company, as administrative agent and syndication agent, and the lenders and issuing banks
named therein.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As described above, at the Effective Time, on the terms and subject
to the conditions set forth in the Merger Agreement, (i) Parent completed its previously announced acquisition of the Company, (ii) the
Company became a wholly owned subsidiary of Parent and (iii) each share of common stock, par value $0.001 per share, of the Company (“Common
Stock”) issued and outstanding immediately prior to the Effective Time (other than shares of Common Stock that, immediately prior
to the Effective Time, were (a) held by Parent or MergerCo, (b) held by the Company as treasury shares or (c) held by any person who properly
exercised appraisal rights under the DGCL) was converted into the right to receive (A) an amount in cash equal to $3.16 per share, without
interest (the “Per Share Cash Consideration”), plus (B) one CVR per share, representing the right to participate in contingent payments in cash, without interest, upon the achievement of certain
milestones as set forth in the CVR Agreement (the Per Share Cash Consideration together with the CVR, the
“Merger Consideration”). Each CVR will entitle the holder to its pro rata share, in cash, of contingent payments of up to an additional $100 million in the aggregate,
without interest and less any applicable tax withholding, upon the achievement of specified milestones during the applicable milestone
periods as set forth in the CVR Agreement.
In addition, on the terms and subject to the conditions set forth in
the Merger Agreement, at the Effective Time, (i) each restricted stock unit with respect to Common Stock (each, a “Company RSU”)
outstanding immediately prior to the Effective Time vested in full (to the extent then-unvested) and was canceled and converted into the
right to receive, with respect to each share of Common Stock subject to such Company RSU, a cash payment equal to the Per Share Cash Consideration,
plus one CVR, subject to applicable tax withholding, (ii) each in-the-money option to purchase shares of Common Stock (each, a “Company
Stock Option”) outstanding immediately prior to the Effective Time vested in full (to the extent then-unvested) and was canceled
and converted into the right to receive, with respect to each share of Common Stock issuable upon exercise of such Company Stock Option,
a cash payment equal to the excess of the Per Share Cash Consideration over the per share exercise price of such Company Stock Option,
plus one CVR, subject to applicable tax withholding, (iii) each Company Stock Option outstanding immediately prior to the Effective Time
having a per share exercise price equal to or greater than the Per Share Cash Consideration but less than the Merger Consideration (assuming
maximum payout with respect to the CVR component of the Merger Consideration) was canceled and converted into the right to receive one
CVR (subject to the reduction mechanics set forth in the CVR Agreement), and (iv) each Company Stock Option outstanding immediately prior
to the Effective Time having a per share exercise price equal to or greater than the Merger Consideration (assuming maximum payout with
respect to the CVR component of the Merger Consideration) was canceled for no consideration.
The aggregate consideration paid by Parent to complete the Merger was
approximately $1.1 billion in cash, plus issuance of the CVRs. The cash consideration was funded through equity contributions
received by Parent and with proceeds from debt financing pursuant to the Loan Agreement.
The foregoing description of the Merger Agreement and the transactions
contemplated thereby does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text
of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Company's Current Report on Form 8-K on May 1, 2026, the terms of which are incorporated herein by reference.
The information in the Introductory Note and Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item
2.01.
Item 2.03 Creation of a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in the Introductory Note and Item 1.01 of
this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continuing
Listing Rule or Standard; Transfer of Listing.
In connection with the consummation of the Merger, on July 13,
2026, the Company (i) notified The Nasdaq Stock Market LLC (“Nasdaq”) of the consummation of the Merger and (ii) requested
that Nasdaq file with the Securities and Exchange Commission (the “SEC”) a Notification of Removal from Listing and/or Registration
on Form 25 to delist and deregister the shares of Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). As a result, the shares of Common Stock will no longer be listed on Nasdaq. The Company intends to file
with the SEC a Certification and Notice of Termination of Registration on Form 15 under the Exchange Act, requesting that the Company’s
reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.
The information in the Introductory Note and Item 2.01 of this Current
Report on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.03 Material Modification to Rights of Security Holders.
The information in the Introductory Note, Item 2.01, Item 3.01, Item
5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01 Changes in Control of Registrant.
As a result of the consummation of the Merger, a change of control
of the Company occurred and the Company became a wholly owned subsidiary of Parent.
The information in the Introductory Note
and in Item 2.01 and Item 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02 Departure of Directors; Election of Directors.
The information in the Introductory Note and in Item 2.01 of this Current
Report on Form 8-K is incorporated by reference into this Item 5.02.
Effective upon the consummation of the Merger, in accordance with the
Merger Agreement, each of J. Martin Carroll, Sheldon L. Koenig, Robert E. Hoffman, Craig Thompson, Jay P. Shepard and Seth H.Z. Fischer,
who constituted the board of directors of the Company immediately prior to the Effective Time, ceased to be directors of the Company,
and Justin Bateman and Ankit Pareek, the directors of MergerCo immediately prior to the Effective Time, were elected as directors of the
Company.
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Changes in Fiscal Year.
In connection with the consummation of the Merger, as of the Effective
Time, the certificate of incorporation and bylaws of the Company were each amended and restated in their entirety. A copy of the Esperion
Therapeutics, Inc. Third Amended and Restated Certificate of Incorporation and the Esperion Therapeutics, Inc. Third Amended and Restated
Bylaws are filed herewith as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.
The information in the Introductory Note and Item 2.01 of this Current
Report on Form 8-K is incorporated by reference into this Item 5.03.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number
Description
of Exhibit
2.1*
Agreement and Plan of Merger, dated as of May 1, 2026,
by and among Esperion Therapeutics, Inc., Essence Parent Inc. and Essence MergerCo Inc. (incorporated by reference to Exhibit 2.1
of the Current Report on Form 8-K filed by Esperion Therapeutics, Inc. on May 1, 2026)
3.1
Esperion Therapeutics, Inc. Third Amended and Restated
Certificate of Incorporation
3.2
Esperion Therapeutics, Inc. Third Amended and Restated
Bylaws
4.1
Indenture, dated as of December 17, 2024, between Esperion Therapeutics, Inc. and U.S. Bank Trust Company, National Association, as Trustee
(incorporated by reference to Exhibit 4.1 to Esperion Therapeutics, Inc.’s Current Report on Form 8-K, File No. 001-35986, filed
on December 18, 2024)
4.2
First Supplemental Indenture, dated as of January 27, 2025, between Esperion Therapeutics, Inc. and U.S. Bank Trust Company, National
Association, as Trustee (incorporated by reference to Exhibit 10.1 to Esperion Therapeutics, Inc.’s Quarterly Report on Form 10-Q,
File No. 001-35986, filed on May 8, 2025)
4.3
Second Supplemental Indenture, dated as of July 13,
2026, among Esperion Therapeutics, Inc., Essence Parent Inc. and U.S. Bank Trust Company, National Association, as Trustee
10.1
Contingent Value Rights Agreement, dated as of July
13, 2026, by and among Essence Parent Inc., Esperion Therapeutics, Inc. and Computershare Inc. and Computershare Trust Company, N.A.,
acting jointly as Rights Agent
104
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* Schedules and exhibits have been
omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby undertakes to furnish copies of any of the omitted schedules
and exhibits upon request by the SEC.
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/ Sheldon L. Koenig
Name:
Sheldon L. Koenig
Title:
President and Chief Executive Officer
Date: July 13, 2026
EX-3.1 — EXHIBIT 3.1
EX-3.1
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Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ESPERION THERAPEUTICS, INC.
FIRST:
The name of the corporation (hereinafter sometimes referred to as the “Corporation”) is:
Esperion Therapeutics, Inc.
SECOND:
The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The name of the Corporation’s registered agent for service of process on the Corporation in the
State of Delaware, at such address, is The Corporation Trust Company.
THIRD:
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the “DGCL”).
FOURTH:
The aggregate number of all classes of shares of capital stock which the Corporation shall have the authority to issue is one thousand
(1,000) shares of common stock, with a par value of $0.01 per share (the “Common Stock”).
FIFTH:
The rights, preferences, privileges and restrictions granted or imposed upon the Common Stock are as follows:
1. Dividends.
The holders of the Common Stock shall be entitled to the payment of dividends when and as declared by the board of directors of the Corporation
(the “Board”) out of funds legally available therefor and to receive other distributions from the Corporation, including
distributions of contributed capital, when and as declared by the Board. Any dividends declared by the Board to the holders of the then
outstanding Common Stock shall be paid to the holders thereof pro rata in accordance with the number of shares of Common Stock
held by each such holder as of the record date of such dividend.
2. Liquidation,
Dissolution or Winding Up. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary,
the funds and assets of the Corporation that may be legally distributed to the Corporation’s stockholders shall be distributed among
the holders of the then outstanding Common Stock pro rata in accordance with the number of shares of Common Stock held by each
such holder.
3. Voting.
Each holder of Common Stock shall have full voting rights and powers equal to the voting rights and powers of each other holder of Common
Stock and shall be entitled to one (1) vote for each share of Common Stock held by such holder. Each holder of Common Stock shall
be entitled to notice of any stockholders’ meeting in accordance with the bylaws of the Corporation (as in effect at the time in
question) and applicable law on all matters put to a vote of the stockholders of the Corporation.
SIXTH:
In furtherance and not in limitation of the power conferred by statute, the Board is expressly authorized to make, alter or repeal the
bylaws of the Corporation subject to any limitations contained therein.
SEVENTH:
A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation
or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the DGCL or (d) for any transaction from which the director derived an improper personal
benefit. If the DGCL is amended after the effective date of this Certificate of Incorporation to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the DGCL, as so amended. Any amendment, repeal or modification of this Article Seventh by either
of (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection
existing at the time of such amendment, repeal or modification with respect to any acts or omissions occurring before such amendment,
repeal or modification of a person serving as a director at the time of such amendment, repeal or modification.
EIGHTH:
Election of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
NINTH:
The Corporation reserves the right to amend, alter, change or repeal any provisions contained in this Certificate of Incorporation, in
the manner now or hereafter prescribed by the DGCL. All rights conferred upon stockholders herein are granted subject to this reservation.
2
EX-3.2 — EXHIBIT 3.2
EX-3.2
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Exhibit 3.2
THIRD AMENDED AND RESTATED
BYLAWS
OF
ESPERION THERAPEUTICS, INC.
ARTICLE I.
OFFICES
Section 1. Registered
Office. The registered office of Esperion Therapeutics, Inc., a Delaware corporation (the “Corporation”),
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other
Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of
Directors (the “Board”) may from time to time determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. Place
of Meetings. Meetings of stockholders shall be held at any place within or outside the State of Delaware designated by the Board.
The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held
solely by means of remote communication authorized by and in accordance with Section 211(a)(2) of the Delaware General Corporation
Law (the “DGCL”). In the absence of any such designation, stockholders’ meetings shall be held at the principal
executive office of the Corporation.
Section 2. Annual
Meetings of Stockholders. The annual meeting of stockholders shall be held each year on a date and at a time designated by the Board.
At each annual meeting directors shall be elected and any other proper business may be transacted.
Section 3. Quorum;
Adjourned Meetings and Notice Thereof. A majority of the stock issued and outstanding and entitled to vote at any meeting of stockholders,
the holders of which are present in person or represented by proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these Bylaws. A quorum, once established, shall not be broken by
the withdrawal of enough votes to leave less than a quorum and the votes present may continue to transact business until adjournment.
If, however, such quorum shall not be present or represented at any meeting of the stockholders, a majority of the voting stock represented
in person or by proxy may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote thereat.
Section 4. Voting.
When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the DGCL,
or the Certificate of Incorporation, or these Bylaws, a different vote is required in which case such express provision shall govern and
control the decision of such question. Except as may be otherwise provided in the Certificate of Incorporation, directors shall be elected
by a plurality of the votes of the stock present in person or represented by proxy at the meeting entitled to vote on the election of
directors.
Section 5. Proxies.
At each meeting of the stockholders, each stockholder having the right to vote may vote in person or may authorize another person or persons
to act for him/her by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three
years prior to said meeting, unless said instrument provides for a longer period. All proxies must be filed with the Secretary of the
Corporation at the beginning of each meeting in order to be counted in any vote at the meeting. Each stockholder shall have one vote for
each share of stock having voting power, registered in his/her name on the books of the Corporation on the record date set by the Board
as provided in Article VI, Section 6 hereof. All elections shall be had and all questions decided by a plurality vote.
Section 6. Special
Meetings. Special meetings of the stockholders, for any purpose, or purposes, unless otherwise prescribed by statute or by the Certificate
of Incorporation, may be called by the President and shall be called by the President or the Secretary at the request in writing of a
majority of the Board, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation,
issued and outstanding, and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 7. Notice
of Stockholder’s Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice
of the meeting shall be given which notice shall state the date and hour, the place (if any) and the means of remote communications (if
any) of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as otherwise
provided by law, the written notice of any meeting shall be given to each stockholder entitled to vote at such meeting not less than ten
nor more than sixty days before the date of the meeting via mail, facsimile or electronic mail. If mailed, notice is given when deposited
in the United States mail, postage prepaid, directed to the stockholder at his/her address as it appears on the records of the Corporation.
Section 8. Maintenance
and Inspection of Stockholder List. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, (i) at the Corporation’s discretion, on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided with the notice of the meeting or (ii) during ordinary
business hours at the Corporation’s principal place of business. In the event that the Corporation determines to make the list available
on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders
of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting
during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote
communication, then the list shall also be available for examination of any stockholder during the whole time of the meeting on a reasonably
accessible electronic network and the information required to access such list shall be provided with the notice of the meeting.
Section 9. Stockholder
Action by Written Consent Without a Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required to
be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be (i) signed by the holders of outstanding stock having not less than the minimum number of votes
that would be necessary (in accordance with the Certificate of Incorporation) to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted and (ii) delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not consented to such action in writing and who, if the action
had been taken at a meeting, would have been entitled to notice of such meeting.
ARTICLE III.
DIRECTORS
Section 1. The
Number of Directors. The number of directors which shall constitute the whole Board shall be not less than one (1) and not more
than eleven (11). The exact number of directors shall be determined by resolution of the Board, and the initial number of directors shall
be two (2). The directors need not be stockholders. The directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 2 of this Article, and each director elected shall hold office until his/her successor is elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of Incorporation or by law, any director or the entire Board may
be removed, either with or without cause, from the Board at any meeting of stockholders by a majority of the stock represented and entitled
to vote thereat.
Section 2. Vacancies.
Vacancies on the Board by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, and newly created
directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. The directors so chosen shall hold office until the next annual election
of directors and until their successors are duly elected and shall qualify, unless sooner replaced by a vote of the stockholders. If there
are no directors in office, then an election of directors may be held in the manner provided by the DGCL. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least
ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. Powers.
The property and business of the Corporation shall be managed by or under the direction of its Board. In addition to the powers and authorities
by these Bylaws expressly conferred upon them, the Board may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by the DGCL or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
Section 4. Place
of Directors’ Meetings. The directors may hold their meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular
Meetings. Regular meetings of the Board may be held without notice at such time and place as shall from time to time be determined
by the Board.
Section 6. Special
Meetings. Special meetings of the Board may be called by the Chairman of the Board or the President or any two members of the Board
on twenty-four hours’ notice to each director, either personally or by mail, electronic mail or facsimile.
Section 7. Quorum.
At all meetings of the Board a majority of the authorized number of directors shall be necessary and sufficient to constitute a quorum
for the transaction of business, and the vote of a majority of the directors present at any meeting at which there is a quorum, shall
be the act of the Board, except as may be otherwise specifically provided by the DGCL, by the Certificate of Incorporation or by these
Bylaws. If a quorum shall not be present at any meeting of the Board, the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum shall be present. If only one director is authorized, such
sole director shall constitute a quorum. At any meeting, a director shall have the right to be accompanied by counsel provided that such
counsel shall agree to any confidentiality restrictions reasonably imposed by the Corporation.
Section 8. Action
Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee,
as the case may be, consent thereto in writing, or by electronic transmission and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 9. Telephonic
Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board, or any committee
designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute
presence in person at such meeting.
Section 10. Committees
of Directors. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each such committee
to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or
they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers
and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it; but no such committee shall have the power or authority to (x) approve, adopt or
recommend to the stockholders of the Corporation any action or matter (other than the election or removal of directors) expressly required
by the DGCL or the Certificate of Incorporation to be submitted to the stockholders of the Corporation for approval or (y) adopt,
amend or repeal any portion of these Bylaws.
Section 11. Minutes
of Committee Meetings. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
Section 12. Compensation
of Directors. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board shall have the authority
to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board and
may be paid a fixed sum for attendance at each meeting of the Board or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
ARTICLE IV.
OFFICERS
Section 1. Officers.
The officers of this corporation shall be chosen by the Board and shall include a President and a Secretary. The Corporation may also
have, at the discretion of the Board, such other officers as are desired, including a Chairman of the Board, one or more Vice Presidents,
a Treasurer, one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be appointed in accordance with
the provisions of Section 3 hereof. In the event there are two or more Vice Presidents, then one or more may be designated as Executive
Vice President, Senior Vice President, or other similar or dissimilar title. At the time of the election of officers, the directors may
by resolution determine the order of their rank. Any number of offices may be held by the same person unless the Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. Election
of Officers. The Board, at its first meeting after each annual meeting of stockholders, shall choose the officers of the Corporation.
Section 3. Subordinate
Officers. The Board may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
Section 4. Compensation
of Officers. The salaries of all officers and agents of the Corporation shall be fixed by the Board.
Section 5. Term
of Office; Removal and Vacancies. The officers of the Corporation shall hold office until their successors are chosen and qualify
in their stead. Any officer elected or appointed by the Board may be removed at any time by the affirmative vote of a majority of the
Board. If the office of any officer or officers becomes vacant for any reason, the vacancy shall be filled by the Board.
Section 6. Chairman
of the Board. The Chairman of the Board, if such an officer be elected, shall, if present, preside at all meetings of the Board and
exercise and perform such other powers and duties as may be from time to time assigned to him/her by the Board or prescribed by these
Bylaws. If there is no President, the Chairman of the Board shall in addition be the Chief Executive Officer of the Corporation and shall
have the powers and duties prescribed in Section 7 of this Article IV.
Section 7. President.
Subject to such supervisory powers, if any, as may be given by the Board to the Chairman of the Board, if there be such an officer, the
President shall be the Chief Executive Officer of the Corporation and shall, subject to the control of the Board, have general supervision,
direction and control of the business and officers of the Corporation. He/she shall preside at all meetings of the stockholders and, in
the absence of the Chairman of the Board, or if there be none, at all meetings of the Board. He/she shall be an ex-officio member of all
committees and shall have the general powers and duties of management usually vested in the office of President and Chief Executive Officer
of corporations, and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.
Section 8. Vice
Presidents. In the absence or disability of the President, the Vice Presidents in order of their rank as fixed by the Board, or if
not ranked, the Vice President designated by the Board, shall perform all the duties of the President, and when so acting shall have all
the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other duties as from time
to time may be prescribed for them, respectively, by the Board.
Section 9. Secretary.
The Secretary shall attend all sessions of the Board and all meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties for the standing committees when required by the Board.
He/she shall give, or cause to be given, notice of all meetings of the stockholders and of the Board, and shall perform such other duties
as may be prescribed by the Board or these Bylaws.
He/she shall keep in safe custody the seal of the
Corporation, and when authorized by the Board, affix the same to any instrument requiring it, and when so affixed it shall be attested
by his/her signature or by the signature of an Assistant Secretary. The Board may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his/her signature.
Section 10. Assistant
Secretary. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board,
or if there be no such determination, the Assistant Secretary designated by the Board, shall, in the absence or disability of the Secretary,
perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board
may from time to time prescribe.
Section 11. Treasurer.
The Treasurer, if such an officer be elected, shall have the custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys, and other valuable effects
in the name and to the credit of the Corporation, in such depositories as may be designated by the Board. He/she shall disburse the funds
of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Board, at its
regular meetings, or when the Board so requires, an account of all his/her transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board, he/she shall give the Corporation a bond, in such sum and with such surety or sureties as shall
be satisfactory to the Board, for the faithful performance of the duties of his/her office and for the restoration to the Corporation,
in case of his/her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his/her possession or under his/her control belonging to the Corporation.
Section 12. Assistant
Treasurer. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board,
or if there be no such determination, the Assistant Treasurer designated by the Board, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board
may from time to time prescribe.
ARTICLE V.
INDEMNIFICATION
Section 1. Definitions.
For purposes of this Article:
a. “Corporate
Status” describes the status of a person who is serving or has served (i) as a Director of the Corporation, (ii) as
an Officer of the Corporation, (iii) as a Non-Officer Employee of the Corporation, or (iv) as a director, partner, trustee,
officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan,
foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation. For
purposes of this Section 1(a), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding
the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer,
employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to
such person’s activities prior to said transaction, unless specifically authorized by the Board or the stockholders of the Corporation;
b. “Director”
means any person who serves or has served the Corporation as a director on the Board;
c. “Disinterested
Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the
Corporation who is not and was not a party to such Proceeding;
d. “Expenses”
means all attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding
costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection
with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements,
costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating,
being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;
e. “Liabilities”
means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;
f. “Non-Officer
Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a
Director or Officer;
g. “Officer”
means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board;
h. “Proceeding”
means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation,
administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative; and
i. “Subsidiary”
shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns
(either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member
or other similar interest or (ii) (A) fifty percent or more of the voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture or other entity, or (B) fifty percent or more of the outstanding
voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other
entity.
Section 2. Indemnification
of Directors and Officers.
a. Subject
to the operation of Section 4 of this Article V of these Bylaws, each Director and Officer shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), and to the extent authorized in this Section 2.
1. Actions,
Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless
by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s
or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right
of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s
or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably
believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful.
2. Actions,
Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the
Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director’s or Officer’s
behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director
or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate
Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed
to the best interests of the Corporation; provided, however, that no indemnification shall be made under this Section 2(a)(2) in
respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction
to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding
was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case,
such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.
3. Survival
of Rights. The rights of indemnification provided by this Section 2 shall continue as to a Director or Officer after he or she
has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.
4. Actions
by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification
in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding
not initiated by such Director or Officer) was authorized in advance by the Board, unless such Proceeding was brought to enforce such
Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these Bylaws
in accordance with the provisions set forth herein.
Section 3. Indemnification
of Non-Officer Employees. Subject to the operation of Section 4 of this Article V of these Bylaws, each Non-Officer Employee
may, in the discretion of the Board, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer
Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which
such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s
Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be
in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The rights of indemnification provided by this Section 3 shall exist as to a Non-Officer Employee
after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives,
executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification
in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board.
Section 4. Determination.
Unless ordered by a court, no indemnification shall be provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer
Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable
cause to believe his or her conduct was unlawful. Such determination shall be made by (a) a majority vote of the Disinterested Directors,
even though less than a quorum of the Board, (b) a committee comprised of Disinterested Directors, such committee having been designated
by a majority vote of the Disinterested Directors (even though less than a quorum), (c) if there are no such Disinterested Directors,
or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (d) by the stockholders
of the Corporation.
Section 5. Advancement
of Expenses to Directors Prior to Final Disposition.
a. The
Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director
is involved by reason of such Director’s Corporate Status within thirty days after the receipt by the Corporation of a written statement
from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by
an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director
is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred
by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only
if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (i) authorized by the Board, or (ii) brought
to enforce such Director’s rights to indemnification or advancement of Expenses under these Bylaws.
b. If
a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty days after receipt by
the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled
to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Article V
shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim and shall not create
a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses
shall be on the Corporation.
c. In
any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall
be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification
set forth in the DGCL.
Section 6. Advancement
of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.
a. The
Corporation may, at the discretion of the Board, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer
Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or
Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting
such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking
by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer
Employee is not entitled to be indemnified against such Expenses.
b. In
any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall
be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard
for indemnification set forth in the DGCL.
Section 7. Contractual
Nature of Rights.
a. The
provisions of this Article V shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the
benefits hereof at any time while this Article V is in effect, in consideration of such person’s past or current and any future
performance of services for the Corporation. Neither amendment, repeal or modification of any provision of this Article V nor the
adoption of any provision of the Certificate of Incorporation inconsistent with this Article V shall eliminate or reduce any right
conferred by this Article V in respect of any act or omission occurring, or any cause of action or claim that accrues or arises or
any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even
in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to indemnification and advancement
of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in question, regardless
of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses
provided by, or granted pursuant to, this Article V shall continue notwithstanding that the person has ceased to be a director or
officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributes of
such person.
b. If
a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty days after receipt
by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled
to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Article V
shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and
shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled
to indemnification shall be on the Corporation.
c. In
any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or
Officer has not met any applicable standard for indemnification set forth in the DGCL.
Section 8. Non-Exclusivity
of Rights. The rights to indemnification and to advancement of Expenses set forth in this Article V shall not be exclusive of
any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the
Certificate or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
Section 9. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising
out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against
such liability under the DGCL or the provisions of this Article V.
Section 10. Other
Indemnification. The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to any person under this
Article V as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any
amount such person may collect as indemnification or advancement of Expenses from such other corporation, partnership, joint venture,
trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any indemnification or advancement of Expenses under
this Article V owed by the Corporation as a result of a person serving, at the request of the Corporation, as a director, partner,
trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
shall only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses available from the applicable Primary
Indemnitor(s) and any applicable insurance policies.
ARTICLE VI.
CERTIFICATES OF STOCK
Section 1. Certificates.
The shares of the Corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions that
some or all of any or all classes or series of stock shall be uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation. Every holder of stock of the Corporation represented by certificates
shall be entitled to have a certificate signed by, or in the name of the Corporation by, any two authorized officers of the Corporation,
certifying the number of shares represented by the certificate owned by such stockholder in the Corporation.
Section 2. Signatures
on Certificates. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer
agent, or registrar at the date of issue.
Section 3. Statement
of Stock Rights, Preferences, Privileges. If the Corporation shall be authorized to issue more than one class of stock or more than
one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class
of stock or series thereof and the qualification, limitations or restrictions of such preferences and/or rights shall be set forth in
full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that
the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications, limitations and restrictions thereof.
Section 4. Lost
Certificates. The Board may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board
may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or certificates, or his/her legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation
a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 5. Transfers
of Stock. Upon surrender to the Corporation, or the transfer agent of the Corporation, of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its book.
Section 6. Fixing
Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders,
or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
Section 7. Registered
Stockholders. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other claim or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. Dividends.
Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared
by the Board at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation.
Section 2. Payment
of Dividends. Before payment of any dividend there may be set aside out of any funds of the Corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors
shall think conducive to the interests of the Corporation, and the directors may abolish any such reserve.
Section 3. Checks.
All checks or demands for money and notes of the Corporation shall be signed by such officer or officers as the Board may from time to
time designate.
Section 4. Fiscal
Year. The fiscal year of the Corporation shall end on December 31st of each year.
Section 5. Corporate
Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate
Seal, Delaware”. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Manner
of Giving Notice. Whenever, under the provisions of the DGCL or of the Certificate of Incorporation or of these Bylaws, notice is
required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in
writing, by mail addressed to such director or stockholder, at his/her address as it appears on the records of the Corporation, with postage
thereon prepaid if by mail, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States
mail. Notice to directors or subject to the terms of the DGCL, stockholders, may also be given by telegram, facsimile or electronic mail.
Section 7. Waiver
of Notice. Whenever any notice is required to be given under the provisions of the DGCL or of the Certificate of Incorporation or
of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, or a waiver by electronic transmission
by the person entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to said notice.
Section 8. Annual
Statement. The Board shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of the Corporation.
ARTICLE VIII.
AMENDMENTS
Section 1. Amendment
by Directors or Stockholders. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the stockholders or
by the Board at any regular meeting of the stockholders or of the Board or at any special meeting of the stockholders or of the Board
if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal Bylaws is conferred upon the Board by the Certificate of Incorporation, it shall not divest or limit the power
of the stockholders to adopt, amend or repeal Bylaws.
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2620034d3_ex4-1.htm · Sequence: 4
Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE
This Second Supplemental Indenture (this “Supplemental
Indenture”) is made and entered into as of July 13, 2026, among Esperion Therapeutics, Inc., a Delaware corporation
(the “Company”), Essence Parent Inc., a Delaware corporation (“Parent”), and U.S. Bank Trust Company,
National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company and the Trustee entered into
an Indenture, dated December 17, 2024 (the “Indenture”), providing for the issuance of the Company’s 5.75%
Convertible Senior Subordinated Notes due 2030 (the “Notes”);
WHEREAS, the Company, Parent, and Essence MergerCo
Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Purchaser”), entered into an Agreement and Plan
of Merger, dated as of May 1, 2026 (the “Merger Agreement”), providing for the merger of Purchaser with and into
the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;
WHEREAS, the Company may consolidate with or merge
with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person subject to the
provisions of Section 11.01 of the Indenture, and the Merger complies with the provisions of Section 11.01 of the Indenture;
WHEREAS, pursuant to the Merger Agreement and
subject to the terms and conditions therein, at the effective time of the Merger (the “Effective Time”), each share
of common stock, par value $0.001 per share, of the Company (the “Common Stock”) issued and outstanding immediately
prior to the Effective Time (other than shares of Common Stock that are (i) owned by Parent or Purchaser, (ii) owned by the
Company as treasury shares or (iii) held by any person who properly exercises appraisal rights under Delaware law) will be converted
into the right to receive (i) an amount in cash equal to $3.16 per share of Common Stock, without interest, plus (ii) one
contractual contingent value right per share of Common Stock (each, a “CVR”), representing the right to participate
in contingent payments in cash, without interest, upon the achievement of certain milestones as set forth in the Contingent Value Rights
Agreement (the “CVR Agreement”), dated the date hereof, by and among Parent, the Company and the Rights Agent (as defined
therein), on the terms and subject to the conditions set forth in the Merger Agreement and the CVR Agreement (each of which as may be
amended or supplemented after the date hereof);
WHEREAS, the Merger constitutes a Share Exchange
Event, a Fundamental Change and a Make-Whole Fundamental Change under the Indenture;
WHEREAS, in connection with the foregoing, Section 14.07(a) of
the Indenture provides that at the Effective Time, the Company will execute with the Trustee a supplemental indenture, without the consent
of Holders as permitted by Section 10.01(g) of the Indenture, providing that at and after the Effective Time, the right to convert
each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount
of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number
of shares of Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled
to receive (the “Reference Property”) upon such Share Exchange Event;
WHEREAS, all conditions for the execution and
delivery of this Supplemental Indenture have been complied with or have been done or performed; and
NOW THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree
for the equal and ratable benefit of the Holders as follows:
1
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. Capitalized
terms used herein but not defined shall have the meanings assigned to them in the Indenture.
ARTICLE 2
AMENDMENT OF INDENTURE
Section 2.01 Settlement Upon Conversion
of the Notes. In accordance with and subject to Section 14.07 of the Indenture, as a result of the Share Exchange Event, from
and after the Effective Time and until the Maturity Date, each $1,000 in principal amount of the Notes is convertible in accordance with
the terms of the Indenture into Reference Property. For the avoidance of doubt, the “Reference Property” shall consist
of $1,032.68 in cash and 326.7974 CVRs per $1,000 principal amount of Notes so converted; provided that Parent and/or the Company shall
not be obligated to issue any fractional CVRs.
Section 2.02 Notes Surrendered in Connection
with Make-Whole Fundamental Change. As a result of the Merger, a Make-Whole Fundamental Change has occurred under the Indenture. Accordingly,
a Holder who converts its Notes in connection with such Make-Whole Fundamental Change shall be entitled to receive $1,232.62 in cash (reflecting
the requisite increase to the Conversion Rate pursuant to Section 14.03 of the Indenture) and 390.0701 CVRs per $1,000 principal
amount of Notes so converted; provided that Parent and/or the Company shall not be obligated to issue any fractional CVRs.
ARTICLE 3
MISCELLANEOUS
Section 3.01 Severability. In the
event any provision of this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted
by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 3.02 Modification, Amendment and
Waiver. The provisions of this Supplemental Indenture may not be amended, supplemented, modified or waived, unless otherwise provided
in the Indenture, except by the execution of a supplemental indenture in compliance with Article 10 of the Indenture.
Section 3.03 Ratification of Indenture;
Supplemental Indenture Part of the Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. In the event of a conflict between
the terms and conditions of the Indenture and the terms and conditions of this Supplemental Indenture, then the terms and conditions of
the Indenture shall prevail. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore
or hereafter authenticated and delivered shall be bound hereby. The Supplemental Indenture shall become effective simultaneously with
the Effective Time.
Section 3.04 Governing Law. THIS SUPPLEMENTAL
INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE AND EACH NOTE,
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05 Trustee. The recitals
and statements contained in this Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee is not charged with any knowledge of the Merger Agreement or any of the terms thereof.
2
Section 3.06 Multiple Counterparts; Electronic
Signatures. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature
pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture
as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto
transmitted by facsimile, PDF or other electronic transmission shall be deemed to be their original signatures for all purposes. This
Supplemental Indenture shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual
on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature,
or (iii) any other electronic signature provided by DocuSign (or such other digital signature provider as specified in writing to
the Trustee by an Officer of the Company), in English and permitted by the federal Electronic Signatures in Global and National Commerce
Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant
provisions of the UCC, in each case, to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic
signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature.
Section 3.07 Headings. The titles
and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.08 Successors. All of the
covenants, stipulations, promises and agreements of the Company in this Supplemental Indenture shall bind its successors. All agreements
of the Trustee in this Supplemental Indenture shall bind its successor.
Section 3.09 No Defaults. Immediately
after giving effect to the Share Exchange Event contemplated under this Supplemental Indenture, the Company represents and warrants that
no Default or Event of Default shall have occurred or be continuing.
Section 3.10 No Security Interest Created.
Nothing in this Supplemental Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 3.11 Benefits of Indenture.
Nothing in this Supplemental Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties
hereto, any Paying Agent, any Conversion Agent, any Custodian, any authenticating agent, any Note Registrar and their successors hereunder,
any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
[Signature Page Follows]
3
IN WITNESS WHEREOF, each of the parties hereto
has caused this Supplemental Indenture to be executed by its duly authorized officers as of the date first written above.
ESPERION THERAPEUTICS, INC.
By:
/s/ Sheldon L. Koenig
Name: Sheldon L. Koenig
Title: President and Chief Executive Officer
ESSENCE PARENT INC.
By:
/s/ Justin Bateman
Name: Justin Bateman
Title: President and Secretary
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
/s/ Joshua A, Hahn
Name: Joahua A, Hahn
Title: Vice President
[Signature Page to Second Supplemental Indenture]
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2620034d3_ex10-1.htm · Sequence: 5
Exhibit 10.1
CONTINGENT
VALUE RIGHTS AGREEMENT
By
and among
ESSENCE
PARENT INC.,
ESPERION
THERAPEUTICS, INC.
and
COMPUTERSHARE
INC. and COMPUTERSHARE TRUST COMPANY, N.A.
acting
jointly as,
Rights
Agent
Dated
as of July 13, 2026
TABLE OF CONTENTS
Page
Article I Definitions
4
Section 1.1
Definitions
4
Section 1.2
Additional Definitions
12
Section 1.3
Other Definitional Provisions
12
Article II Contingent Value Rights
13
Section 2.1
CVRs
13
Section 2.2
Nontransferable
13
Section 2.3
No Certificate; Registration; Registration of Transfer; Change of Address
13
Section 2.4
Payment Procedures; Intended Tax Treatment
15
Section 2.5
No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent or the Company
18
Section 2.6
Enforcement of Rights of Holders
18
Section 2.7
Ability to Abandon CVR
18
Article III The Rights Agent
18
Section 3.1
Certain Duties and Responsibilities
18
Section 3.2
Certain Rights of the Rights Agent
19
Section 3.3
Funds Received
21
Section 3.4
Resignation and Removal; Appointment of Successor
22
Section 3.5
Acceptance of Appointment by Successor
23
Article IV Covenants
23
Section 4.1
List of Holders
23
Section 4.2
Payment of Milestone Payments
23
Section 4.3
Assignment Transactions; Change in Control
24
Section 4.4
Books and Records; Updates
25
Section 4.5
Diligent Efforts
25
Article V Amendments
26
Section 5.1
Amendments without Consent of Holders
26
Section 5.2
Amendments with Consent of Holders
27
Section 5.3
Execution of Amendments
27
Section 5.4
Effect of Amendments
28
i
Article VI Miscellaneous and General
28
Section 6.1
Termination
28
Section 6.2
Notices to the Rights Agent and Parent or the Company
28
Section 6.3
Notice to Holders
29
Section 6.4
Governing Law; Jurisdiction; WAIVER OF JURY TRIAL
30
Section 6.5
No Waiver; Remedies Cumulative
30
Section 6.6
Entire Agreement; Counterparts
30
Section 6.7
Third-Party Beneficiaries; Action by Acting Holders
31
Section 6.8
Specific Performance
31
Section 6.9
Severability
32
Section 6.10
Assignment
32
Section 6.11
Renunciation of Rights
32
Section 6.12
Legal Holidays
32
Section 6.13
Interpretation; Construction
33
Section 6.14
Confidentiality
33
Section 6.15
Further Assurances
33
Section 6.16
Force Majeure
33
Annex A – Form of Assignment and Assumption Agreement
ii
CONTINGENT
VALUE RIGHTS AGREEMENT
This CONTINGENT VALUE RIGHTS
AGREEMENT, dated as of July 13, 2026 (this “Agreement”), by and among Essence Parent Inc., a Delaware corporation
(“Parent”), Esperion Therapeutics, Inc., a Delaware corporation (the “Company”), and , Computershare
Inc., a Delaware corporation (“Computershare”) and its affiliate, Computershare Trust Company, N.A., a federally chartered
trust company (“Computershare Trust Company”), acting jointly with Computershare, as rights agent (the “Rights
Agent”).
RECITALS
WHEREAS,
this Agreement is entered into pursuant to the Agreement and Plan of Merger, dated May 1, 2026 (as amended, restated, supplemented,
waived or otherwise modified from time to time, the “Merger Agreement”), by and among the Company, Parent and Essence
MergerCo Inc., a Delaware corporation wholly owned by Parent (“MergerCo”), pursuant to which MergerCo will be merged
with and into the Company (the “Merger”), with the Company continuing as the surviving corporation in the Merger and
as a wholly owned Subsidiary of Parent, on the terms and subject to the conditions set forth therein; and
WHEREAS,
pursuant to the terms of the Merger Agreement, as a result of the consummation of the Merger, (i) the holders of Shares that are
entitled to receive the Merger Consideration pursuant to Section 2.1(c) of the Merger Agreement, (ii) certain holders
of Company Equity Awards that are entitled to receive CVRs pursuant to Section 2.3 of the Merger Agreement, (iii) the
holders of Company Warrants that may be entitled to receive CVRs pursuant to Section 2.5 of the Merger Agreement and the terms
of the applicable Company Warrant, and (iv) the holders of Convertible Notes that may be entitled to receive CVRs pursuant to the
terms of the Convertible Notes Indenture, the Supplemental Indenture and the Convertible Notes, may become entitled to receive the applicable
Milestone Payment Amounts contingent upon the achievement of the applicable Milestones during the applicable Milestone Periods, subject
to the terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the consummation of the transactions referred to above, Parent, the Company
and the Rights Agent agree, for the equal and proportionate benefit of all Holders (as hereinafter defined), as follows:
Article I
Definitions
Section 1.1 Definitions.
Capitalized terms used in this Agreement and not otherwise defined shall have the meanings assigned to them in the Merger Agreement.
For purposes of this Agreement, the following terms shall have the following meanings:
“Acting Holders”
means, at the time of determination, Holders of at least 35% of the outstanding CVRs as set forth in the CVR Register.
“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with,
such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management
or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise;
provided that, in no event shall Parent, MergerCo or any of their respective Subsidiaries (including, from and after the Effective
Time, the Company and its Subsidiaries) be considered an Affiliate of ArchiMed SAS or any portfolio company or investment fund affiliated
with ArchiMed SAS nor shall any portfolio company or investment fund affiliated with ArchiMed SAS be considered to be an Affiliate of
Parent, MergerCo or any of their respective Subsidiaries (including, from and after the Effective Time, the Company and its Subsidiaries).
For the avoidance of doubt, Parent’s Affiliates shall include, from and after the Effective Time, the Company and its Subsidiaries.
4
“Aggregate Excess
Exercise Price” means, with respect to a given Milestone, the sum of the Excess Exercise Prices for such Milestone with respect
to all CVRs issued in respect of Closing Date Underwater Options (other than Underwater Option CVRs with respect to such Milestone) as
registered in the CVR Register at the applicable time.
“Assignment Transaction”
means any transaction (including a sale of assets, spin-off, split-off, sale of equity interests, or exclusive licensing transaction),
other than a Change in Control, pursuant to which all or substantially all of the rights in and to a Product in the United States are
sold, assigned, exclusively licensed, transferred to or acquired by any Person, other than Parent, the Company or any of their respective
wholly-owned Subsidiaries. For the avoidance of doubt, any transaction pursuant to which a Person, other than Parent, the Company or any
of their respective wholly-owned Subsidiaries, is granted exclusive rights to develop, manufacture or commercialize a Product in the United
States shall constitute an Assignment Transaction, regardless of whether such transaction is structured as a collaboration, co-promotion,
co-marketing or similar arrangement. Notwithstanding the foregoing, non-exclusive licensing, distribution, manufacturing or other non-exclusive
arrangements between Parent, the Company or any of their respective Affiliates (disregarding the proviso in the definition thereof), on
the one hand, and third party licensees, distributors, contract manufacturers or service providers, on the other hand, entered into in
the ordinary course of business shall not constitute an Assignment Transaction, regardless of whether such transaction is structured as
a collaboration, co-promotion, co-marketing or other similar arrangement.
“Business Day”
means a day except a Saturday, a Sunday or other day on which banking institutions in the City of New York, New York are authorized or
required by Law or executive order to be closed.
“Bempedoic
Acid Milestone” means achievement of annual Net Sales of the Bempedoic Acid Products in the United States above three
hundred million dollars ($300,000,000) attributable to the Bempedoic Acid Milestone Period, as finally determined following the expiration
of the Bempedoic Acid Milestone Period in accordance with this Agreement.
“Bempedoic
Acid Milestone Period” means the period commencing on (and including) January 1, 2027 and ending on (and including)
December 31, 2027.
5
“Bempedoic Acid Products”
means (a) the product known as NEXLETOL® (bempedoic acid as the sole active pharmaceutical ingredient) and that is the subject
of NDA 211616, whether or not sold under the brand name NEXLETOL®, (b) the product known as NEXLIZET® (bempedoic acid and
ezetimibe as the sole active pharmaceutical ingredients) and that is the subject of NDA 211617, whether or not sold under the brand name
NEXLIZET®, and (c) a product containing as the sole active pharmaceutical ingredients bempedoic acid, ezetimibe and either of
(i) atorvastatin or (ii) rosuvastatin.
“Change in Control”
means (a) a merger, consolidation or other business combination in which Parent is a constituent party and is not the surviving entity
or (b) any other transaction involving Parent in which Parent is the surviving or continuing corporation but in which the holders
of voting securities of Parent immediately prior to such transaction collectively beneficially own securities representing less than 50%
of Parent’s voting power immediately after such transaction, in each case other than (x) a merger, consolidation, business
combination or other transaction of Parent in which the holders of voting securities of Parent immediately prior to such merger, consolidation,
business combination or other transaction will collectively beneficially own, directly or indirectly, securities representing at least
50% of the voting securities of the surviving or continuing corporation in such merger, consolidation, business combination or other transaction,
as the case may be, immediately after such merger, consolidation, business combination or other transaction, and (y) any and all
bona fide financing transactions that do not result in any Person or group of Persons beneficially owning 50% or more of Parent’s
voting securities or internal reorganizations (including the change of place of incorporation or domicile of such entity).
“Closing Date Underwater
Option” means each Company Option referred to in Section 2.3(a)(iv) of the Merger Agreement.
“Company Common Stock”
means the common stock, $0.001 par value per share, of the Company.
“Company Equity Award”
means any Company Option that is outstanding and unexercised and any Company RSU that is outstanding, in each case as of immediately prior
to the Effective Time.
“Company Option”
means each option to purchase Shares, other than those Underwater Options that are canceled without any consideration being payable in
respect thereof in accordance with Section 2.3(a)(v) of the Merger Agreement.
“Company RSU”
means each restricted stock unit award with respect to Shares.
“CVRs”
means the contingent rights of the Holders to receive one or more Milestone Payment Amounts pursuant to this Agreement.
“Diligent Efforts”
means, with respect to a Product, those efforts of a Person commensurate with those efforts that a biopharmaceutical company of comparable
size and resources as those of the Company and its Affiliates as of the date hereof would devote to the commercialization of a pharmaceutical
product having similar market potential as the Product, at a similar stage of its development or product life, taking into account issues
of market exclusivity, product and risk profile, including safety, tolerability and efficacy, the competitiveness of alternate products
in the marketplace or under development, the availability of existing forms or dosages of the Product for other indications, the launch
or sales of a generic product, the regulatory environment and the profitability of the Product (including pricing and reimbursement status
achieved), and other technical, commercial, legal, scientific or medical factors; provided that such level of efforts and resources
shall be determined without taking into account the fact of the potential Total Milestone Payments payable in accordance with, and subject
to, the terms of this Agreement.
6
“Enbumyst
Milestone” means achievement of annual Net Sales of the Enbumyst Product in the United States of at least one hundred
sixty million dollars ($160,000,000) attributable to any single calendar year of the Enbumyst Milestone Period, as finally determined
following the end of each such calendar year in accordance with this Agreement.
“Enbumyst
Milestone Period” means the period commencing on (and including) the Effective Time and ending on (and including) the
earlier of (a) December 31 of the calendar year during which the Enbumyst Milestone is achieved and (b) December 31,
2030.
“Enbumyst Product”
means (a) the nasal spray product known as ENBUMYST® (bumetanide as the sole active pharmaceutical ingredient) and that is the
subject of NDA 219500, whether or not sold under the brand name ENBUMYST®, or (b) a subcutaneous injection product containing
bumetanide (as the sole active pharmaceutical ingredient).
“Equity Award Holder”
means a Holder of a CVR issued in accordance with the terms of the Merger Agreement with respect to a Company Equity Award.
“Excess Exercise
Price” means, in the case of a CVR issued in respect of a Closing Date Underwater Option and with respect to a given Milestone,
an amount equal to the excess, if any, of (a) the exercise price of such Closing Date Underwater Option over (b) the sum of
(i) the Per Share Cash Consideration and (ii) the aggregate Milestone Payments, if any, that have been previously paid or that
are earned and payable prior to the Milestone Payment Date for such Milestone, determined as though such CVR were not issued in respect
of a Closing Date Underwater Option. For the avoidance of doubt, if the value of the foregoing clause (a) is less than or equal to
the value of the foregoing clause (b), “Excess Exercise Price” shall be deemed zero dollars ($0) for purposes of such Milestone.
“Governmental Authority”
means any government, court, regulatory or administrative agency, commission or authority or other legislative, executive or judicial
governmental entity (in each case including any self-regulatory organization), whether federal, state or local, domestic, foreign or multinational,
or any quasi-governmental or private body exercising any regulatory, taxing, importing, executive, legislative, judicial, or administrative
powers or functions of or pertaining to any such government, or other governmental or quasi-governmental authority; any entity that contracts
with a governmental entity to administer or assist in the administration of a governmental program when applicable rulemaking or policy
making authority has been granted by statute or regulation to such entity; or any arbitrator with authority to bind a party at law.
“Holder”
means a Person in whose name a CVR is registered in the CVR Register at the applicable time.
7
“Milestone”
means the Bempedoic Acid Milestone or the Enbumyst Milestone, as applicable.
“Milestone Payment
Amount” means, for a given Holder and a given Milestone, a one-time payment equal to (a) in the case of CVRs held by such
Holder other than CVRs issued in respect of Closing Date Underwater Options, the product of (i) the Milestone Payment for such Milestone
and (ii) the number of such CVRs held by such Holder as reflected on the CVR Register as of the close of business on the date of
the Milestone Achievement Notice for such Milestone and (b) in the case of CVRs held by such Holder issued in respect of Closing
Date Underwater Options, the product of (i) the Underwater Option Milestone Payment for such Milestone and (ii) the number of
such CVRs held by such Holder as reflected on the CVR Register as of the close of business on the date of the Milestone Achievement Notice
for such Milestone. For the avoidance of doubt, no payment shall be made in respect of any Underwater Option CVR for any Milestone.
“Milestone Payment”
means, with respect to a given Milestone, the quotient obtained by dividing (i) (A) the Total Milestone Payment for such Milestone,
plus (B) the Aggregate Excess Exercise Price for such Milestone by (ii) the number of CVRs registered in the CVR Register
as of the close of business on the date of the Milestone Achievement Notice for such Milestone (other than any Underwater Option CVRs
with respect to such Milestone). The Milestone Payment shall be rounded up to the nearest whole cent.
“Milestone Payment
Date” means, subject in all cases to Section 2.4(c)(i), with respect to a given Milestone, the date selected by
Parent for the payment of the applicable Milestone Payment Amounts with respect to such Milestone, which shall be no later than (a) with
respect to the Bempedoic Acid Milestone, March 15, 2028, and (b) with respect to the Enbumyst Milestone, March 15th
of the calendar year immediately following the end of the calendar year in which the Enbumyst Milestone is achieved; provided that,
if Milestone Payment Amounts become payable with respect to both Milestones, the applicable Milestone Payment Dates shall be different
dates.
“Milestone
Period” means the Bempedoic Acid Milestone Period or the Enbumyst Milestone Period, as applicable.
“Net Sales”
means, without duplication, with respect to the applicable Product or Products with respect to a given Milestone, the first gross amount
invoiced, and, with respect to Products delivered to the customer but for which an invoice has not yet been issued, the first gross amount
to be invoiced, by Parent, the Company and their respective Affiliates (disregarding the proviso in the definition thereof), or any sublicensee,
in each case in bona fide sales or other first commercial disposition of such Products to unrelated third parties in the United States,
less the following deductions to the extent actually taken, incurred, paid, accrued, allocated or included in the gross sales prices or
specifically allocated in its financial statements with respect to such sales:
(i) trade,
quantity, price, and cash discounts;
(ii) discounts,
refunds, rebates, chargebacks, price adjustments or other payments, retroactive or otherwise, imposed by, negotiated with or otherwise
paid to Governmental Authorities or other payees and any other allowances granted to non-related parties (including to Governmental Authorities,
purchasers, reimbursers, customers, distributors, wholesalers and managed care organizations (and other similar entities and institutions)
which effectively reduce the net selling price or gross sales of the Product);
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(iii) amounts
repaid or credited by reason of rejections, defects, return goods allowances, recalls or returns, or because of retroactive price reductions,
including rebates, shelf-stock adjustments or wholesaler charge backs, in each case, net of any applicable reserves to the extent previously
deducted in calculating Net Sales;
(iv) Taxes
on sales (such as sales, value added or use taxes, other than income taxes) to the extent added to the sale price and set forth separately
as such in the total amount invoiced and borne by such third party;
(v) (A) freight,
postage, shipping or transportation, (B) insurance, import/export and other transportation charges, to the extent added to the sale
price and set forth separately as such in the total amount invoiced, for services provided by wholesalers and warehousing chains and (C) fees;
(vi) any
uncollected debts actually written off, to the extent not previously deducted hereunder (provided that any amounts deducted under
this clause shall be included in Net Sales if later collected); and
(vii) any
other deductions which are in accordance with GAAP.
Such amounts shall be determined
from the books and records of Parent, the Company or applicable Affiliate (disregarding the proviso in the definition thereof) or sublicensee,
maintained in accordance with GAAP or, in the case of sublicensees, GAAP, International Financial Reporting Standards, or an applicable
equivalent based on such sublicensee’s auditing standards, consistently applied. Parent and the Company further agree in determining
such amounts, they will use the Company’s then current standard procedures and methodology or, in the case of a sublicensee, such
sublicensee’s then current standard procedures and methodology, consistently applied. Net Sales shall not include any amounts invoiced
or otherwise recognized for transfers of Products at or below cost (x) in connection with the research, development or testing of
a Product, (y) for purposes of distribution as promotional samples, or (z) for indigent or similar public support, named patient,
or compassionate use programs. If a Product is sold in combination or bundled with one or more other active pharmaceutical ingredients
or products (whether packaged together or formulated in a fixed-dose combination), Net Sales for such Product shall be calculated by multiplying
the Net Sales of such combination product by a fraction, the numerator of which is the gross invoice price of the Product if sold separately
and the denominator of which is the sum of the gross invoice prices of each active component of such combination if sold separately, or,
if such separate prices are not available, by such other reasonable and equitable method as Parent and the Acting Holders shall discuss
in good faith and seek to agree in writing that takes into account, in the United States, variations in potency, the relative contribution
of each therapeutically active ingredient or other component, and the relative value to the end user of each therapeutically active ingredient
or other component. If Parent and the Acting Holders for any reason do not reach agreement with respect to such method within thirty (30)
days after the end of any applicable calendar year, the matter shall be referred to an independent internationally recognized accounting
firm or valuation expert mutually agreed by Parent and the Acting Holders (or, failing agreement for any reason, appointed by the American
Arbitration Association), whose determination shall be final and binding. Such expert shall make such determination using a reasonable
and equitable allocation methodology consistent with the foregoing. Pending such determination, Net Sales shall be calculated by Parent
using such reasonable and equitable method as may be determined by Parent in good faith, subject to true-up following the expert’s
determination.
9
“Officer’s
Certificate” means a certificate signed by the chief executive officer, chief financial officer, any vice president, the controller,
the treasurer or the secretary, in each case of Parent, in his or her capacity as such an officer (and not in any individual capacity),
and delivered to the Rights Agent or any other person authorized to act on behalf of Parent.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for Parent or its Subsidiaries and who shall be reasonably acceptable to the Rights
Agent.
“Party”
shall mean each of the Rights Agent, Parent and the Company.
“Permitted Transfer”
means a transfer of a CVR: (a) upon the death of a Holder by will or intestacy; (b) by instrument to an inter vivos or
testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; (c) pursuant to a court order;
(d) by operation of Law (including by consolidation or merger) or without consideration in connection with the dissolution, liquidation
or termination of any corporation, limited liability company, partnership or other entity; (e) in the case of CVRs payable to a nominee,
from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same
beneficial owner, in each case to the extent allowable by DTC; or (f) as permitted by Section 2.7.
“Person”
means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization
or any other entity, including a Governmental Authority.
“Products”
means the Bempedoic Acid Products or the Enbumyst Product, as applicable.
“Rights Agent”
means the Rights Agent named in the preamble of this Agreement, until a successor Rights Agent becomes such pursuant to the applicable
provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.
“Specified Holder”
means each Holder who was a member of the Board of Directors of the Company as of immediately prior to the Effective Time.
“Shares”
means the shares of Company Common Stock.
“Significant Pharmaceutical
Company” means a company that, together with its Affiliates, is in the pharmaceutical or biotechnology industry and that, based
on its most recent fiscal year, had annual consolidated revenues (with its Affiliates) of at least $500 million, as reflected in such
company’s consolidated audited financial statements.
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“Supplemental Indenture”
means the Second Supplemental Indenture, between Esperion Therapeutics, Inc. and U.S. Bank Trust Company, National Association, as
Trustee, entered into in connection with the consummation of the Merger.
“Tax” means
any taxes, imposts, levies, withholdings, charges, duties, fees or other like assessments or charges, in each case in the nature of a
tax (including taxes based upon or measured by gross receipts, estimated, privilege, fuel, ad valorem, customs, duties, license, environmental,
alternative minimum, add-on minimum, utility, windfall profits, franchise, capital stock, real property, personal property, tangible withholding,
payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, workers’
compensation, value-added, and all other taxes of any kind), imposed by a Governmental Authority, together with all interest, penalties
and additions imposed with respect to such amounts.
“Total Milestone
Payment” means: (a) with respect to the Bempedoic Acid Milestone, after Parent has finally determined the annual Net Sales
of the Bempedoic Acid Products for the Bempedoic Acid Milestone Period in accordance with this Agreement, (i) if such annual Net
Sales of the Bempedoic Acid Products in the United States during the Bempedoic Acid Milestone Period are greater than or equal to $350,000,000,
then $40,000,000, (ii) if such annual Net Sales of the Bempedoic Acid Products in the United States during the Bempedoic Acid Milestone
Period are greater than $300,000,000 but less than $350,000,000, then an amount between $0 and $40,000,000 determined by linear interpolation,
based on the amount by which such annual Net Sales exceed $300,000,000 but are less than $350,000,000, and (iii) in all other cases,
$0; and (b) with respect to the Enbumyst Milestone, after Parent has finally determined the annual Net Sales of the Enbumyst Product
for a given calendar year within the Enbumyst Milestone Period, (i) if the Enbumyst Milestone is achieved for any such calendar year
within the Enbumyst Milestone Period, then $60,000,000, and (ii) in all other cases, $0. For illustrative purposes, if annual Net
Sales of the Bempedoic Acid Products for the Bempedoic Acid Milestone Period are determined to equal $320,000,000, then the Total Milestone
Payment with respect to the Bempedoic Acid Milestone shall equal $40,000,000 x ($20,000,000/$50,000,000) or $16,000,000. The Total Milestone
Payment shall be rounded up to the nearest dollar.
“Underwater Option
CVR” means, with respect to a given Milestone, a CVR issued in respect of a Closing Date Underwater Option for which the Underwater
Option Milestone Payment with respect to such Milestone would be $0.
“Underwater Option
Milestone Payment” means, for a CVR issued in respect of a Closing Date Underwater Option and with respect to a given Milestone,
the amount, if any, by which the Milestone Payment for such Milestone exceeds the Excess Exercise Price for such Milestone with respect
to such CVR.
“United States”
or “U.S.” means the United States of America or any of its possessions or territories.
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Section 1.2 Additional
Definitions. For purposes of this Agreement, each of the following terms shall have the meaning specified in the Section set
forth opposite to such term:
Term
Section
Agreement
Preamble
Assignee
Section 6.10
Assignment Transaction Acquiror
Section 4.3(a)
Company
Preamble
CVR Register
Section 2.3(b)
DTC
Section 2.3(b)
Funds
Section 3.3
Losses
Section 3.2(h)
Merger
Recitals
Merger Agreement
Recitals
MergerCo
Recitals
Milestone Achievement Notice
Section 2.4(a)
Notice Holders
Section 4.4
Parent
Preamble
Rights Agent
Preamble
Section 1.3 Other
Definitional Provisions. Unless the context expressly otherwise requires:
(a) the
words “hereof,” “hereto,” “herein,” and “hereunder,” and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(b) the
terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(c) the
terms “Dollars” and “$” mean United States Dollars;
(d) references
herein to a specific Article, Section, or Annex shall refer, respectively, to Articles and Sections of, and Annexes to, this Agreement;
(e) wherever
the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be
followed by the words “without limitation”;
(f) the
term “or” will not be deemed to be exclusive;
(g) references
herein to any gender include the other gender; and
(h) any
Law defined or referred to herein will refer to such Law as amended and the rules and regulations promulgated thereunder.
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Article II
Contingent
Value Rights
Section 2.1 CVRs.
Notwithstanding anything to the contrary, this Agreement shall only become effective as of, and contingent upon, the Effective Time and
shall be void ab initio and of no effect upon the valid termination of the Merger Agreement prior to the Effective Time.
The CVRs represent the contractual rights of Holders to receive contingent cash payments pursuant to the Merger Agreement and this Agreement,
and no CVRs shall be issued other than as provided in the Merger Agreement. Subject to Section 2.7, Section 6.11
and any Permitted Transfers, the Holders shall be (a) holders of Shares that have been canceled and converted into the right to
receive the Merger Consideration pursuant to Section 2.1(c) of the Merger
Agreement, (b) holders of Company Equity Awards that have been canceled and converted pursuant to Section 2.3(a)(i),
Section 2.3(a)(iii), or Section 2.3(a)(iv) of the Merger Agreement into the right to receive the consideration
specified therein, (c) holders of Company Warrants that have elected to receive the Merger Consideration pursuant to Section 2.5
of the Merger Agreement and the terms of the applicable Warrant, and (d) holders of Convertible Notes that have converted such Convertible
Notes into the Reference Property (as defined in the Convertible Notes Indenture) pursuant to the terms of the Convertible Notes Indenture,
the Supplemental Indenture and the Convertible Notes. A list of the initial Holders shall be furnished to the Rights Agent by or on behalf
of Parent in accordance with Section 4.1 hereof and shall be updated thereafter in accordance with Section 4.1
hereof.
Section 2.2 Nontransferable.
The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in
part, other than through a Permitted Transfer. Any attempted sale, assignment, transfer, pledge, encumbrance or disposition of the CVRs,
in whole or in part, that is not a Permitted Transfer, will be null and void ab initio and of no effect. The CVRs will not be listed
on any day quotation system or traded on any day securities exchange. The Rights Agent hereby acknowledges the restrictions on transfer
contained in this Section 2.2 and agrees not to register a transfer which does not comply with this Section 2.2.
Section 2.3 No
Certificate; Registration; Registration of Transfer; Change of Address.
(a) The
CVRs will not be evidenced by a certificate or other instrument.
(b) The
Rights Agent shall create and maintain a register (as updated from time to time in accordance with Section 4.1, the “CVR
Register”) for the purpose of (i) identifying the Holders of the CVRs and (ii) registering CVRs and Permitted Transfers
thereof. The CVR Register will initially show one position for Cede & Co. representing all CVRs issued in respect of Book-Entry
Shares held by The Depository Trust Company (“DTC”) on behalf of the street holders of Shares as of immediately prior
to the Effective Time. The Rights Agent will have no responsibility whatsoever directly to the street name holders or participants with
respect to transfers of CVRs. With respect to any payments to be made under Section 2.4, the Rights Agent will accomplish
the payment to any former street name holders of the Shares by sending a lump sum payment to DTC. The Rights Agent will have no responsibilities
whatsoever with regard to the distribution of payments by DTC to such street name holders or participants. In the case of CVRs issued
in respect of Book-Entry Shares held through the Company transfer agent (and not DTC) and Shares represented by Certificates, such CVRs
shall initially be registered in the name and address of the holder thereof as set forth in the records of the Company’s transfer
agent immediately prior to the Effective Time and in a denomination equal to the number of CVRs issued in respect of such Shares canceled
and converted pursuant to Section 2.1(c) of the Merger Agreement in connection with the Merger. In the case of CVRs
issued in respect of Company Equity Awards, such CVRs shall initially be registered in the name and address of the holder thereof as
set forth in the records of the Company as of immediately prior to the Effective Time and in a denomination equal to the number of CVRs
issued in respect of such Company Equity Awards canceled and converted pursuant to Section 2.3(a)(i), Section 2.3(a)(iii) or
Section 2.3(a)(iv) of the Merger Agreement, as applicable, in connection with the Merger. In the case of CVRs issued
in respect of Company Warrants and Convertible Notes, such CVRs shall initially be registered in the name and address of the holder thereof
as set forth in the records of the Company as of immediately following (i) in the case of Company Warrants, the exercise of such
Company Warrants in exchange for the receipt of the Merger Consideration in accordance with the Merger Agreement and the applicable Company
Warrant or (ii) in the case of Convertible Notes, the conversion of such Convertible Notes into the Reference Property in accordance
with the Convertible Notes Indenture, the Supplemental Indenture and the Convertible Notes, and in a denomination equal to the number
of CVRs issued in respect of such Company Warrant or Convertible Note, as applicable; provided that, with respect to any Convertible
Notes held by DTC on behalf of the street holders of such Convertible Notes, the CVR Register shall show one position for Cede &
Co. representing all CVRs issued in respect of such Convertible Notes.
13
(c) In
the case of an Equity Award Holder, a holder of Company Warrants or a holder of Convertible Notes, the CVRs held by such Holders in respect
of their Company Equity Awards, Company Warrants or Convertible Notes, as applicable, shall be registered and tracked separately from
those CVRs held by such Holders in respect of Shares referenced in Section 2.1(a); provided, that such registration
and tracking will still be performed by the Rights Agent in accordance with Section 2.3(b). In the case of an Equity Award
Holder, the CVRs held by such Equity Award Holder in respect of their Closing Date Underwater Options shall be registered and tracked
separately from those CVRs held by such Equity Award Holder (if any) in respect of their Shares or any other Company Equity Awards.
(d) Subject
to the restrictions on transferability set forth in Section 2.2, every request to transfer a CVR must be made in writing
and accompanied by a written instrument of transfer and other documentation reasonably requested by the Rights Agent in form reasonably
satisfactory to the Rights Agent pursuant to its customary policies and guidelines, which may include a guaranty of signature by an “eligible
guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program, duly executed by the
Holder thereof, the Holder’s attorney duly authorized in writing, the Holder’s personal representative duly authorized in
writing or the Holder’s survivor (with written documentation evidencing such Person’s status as the Holder’s survivor),
as applicable, and setting forth in reasonable detail the circumstances relating to the transfer. Upon receipt of such written notice,
the Rights Agent shall, subject to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise
complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), register the transfer
of such CVR in the CVR Register. Any transfer of CVRs will be without charge (other than the cost of any Tax imposed in connection with
any such registration of transfer) to the applicable Holder. The Rights Agent shall have no duty or obligation to take any action under
any section of this Agreement that requires the payment by a Holder of a CVR of applicable Taxes or charges unless and until the Rights
Agent is satisfied that all such Taxes or charges have been paid or that no payment of any such Taxes or charges is required. All duly
transferred CVRs registered in the CVR Register shall be the valid obligations of Parent and the Company, jointly and severally, and
shall entitle the transferee to the same benefits and rights under this Agreement as those held immediately prior to the transfer by
the transferor. No transfer of a CVR shall be valid until registered in the CVR Register in accordance with this Agreement.
14
(e) A
Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register. The written
request must be duly executed by the Holder. Upon receipt of such written request, the Rights Agent is hereby authorized to record, and
shall as promptly as practicable, record, the change of address in the CVR Register.
Section 2.4 Payment
Procedures; Intended Tax Treatment.
(a) If
a Milestone is achieved at any time prior to the expiration of the applicable Milestone Period, as determined by Parent following the
end of the applicable calendar year, then, at least ten (10) Business Days prior to the applicable Milestone Payment Date for such
Milestone, Parent will deliver or cause to be delivered to the Rights Agent a written notice (the “Milestone Achievement Notice”)
certifying the date of the achievement of such Milestone and that each Holder is entitled to receive the applicable Milestone Payment
Amount payable to such Holder with respect to such Milestone, with such applicable Milestone Payment Amount to be paid to each Holder
being calculated by Parent in accordance with this Agreement and provided to the Rights Agent as part of the Milestone Achievement Notice.
Following the delivery of the Milestone Achievement Notice, (i) Parent will deliver or cause to be delivered to the Rights Agent
(A) instructions to solicit Tax forms or other information required to properly make Tax deductions or withholdings in accordance
with Section 2.4(d), and (B) any letter of instruction reasonably required by the Rights Agent and requested by the
Rights Agent as soon as practicable in advance of the Milestone Payment Date and (ii) Parent or the Company will deliver or cause
to be delivered to Computershare at least one (1) Business Day prior to the Milestone Payment Date, cash, by wire transfer of immediately
available funds to an account designated by Computershare, in an amount equal to the aggregate Milestone Payment Amount due to all Holders
with respect to such Milestone pursuant to Section 4.2 other than Equity Award Holders with respect to CVRs issued in respect
of Company Equity Awards (with respect to which any such amounts payable to Equity Award Holders shall be retained by Parent or the Company
for payment pursuant to Section 2.4(c)). For the avoidance of doubt, each Milestone Payment Amount shall only be paid once,
if at all, subject to the achievement of the applicable Milestone in accordance with this Agreement, and no Milestone Payment Amount
shall become payable unless and until the applicable Milestone has been achieved prior to the expiration of the applicable Milestone
Period.
(b) Provided
that the aggregate applicable Milestone Payment Amount has been delivered to the Rights Agent in accordance with Section 2.4(a)(ii),
the Rights Agent will promptly, and in any event within ten (10) Business Days of receipt of the applicable Milestone Achievement
Notice and any letter of instruction from Parent reasonably required by the Rights Agent, send each Holder at its registered address
a copy of such Milestone Achievement Notice, and on the Milestone Payment Date pay the Milestone Payment Amount, subject to any amounts
deducted or withheld pursuant to Section 2.4(d), to each Holder (other than an Equity Award Holder with respect to a CVR
issued in respect of a Company Equity Award) with respect to the CVRs held by such Holder (i) by check mailed to the address of
such Holder as reflected in the CVR Register as of the close of business on the date of such Milestone Achievement Notice or (ii) with
respect to any such Holder that is due an aggregate amount in excess of $100,000 and has provided the Rights Agent with wiring instructions,
by wire transfer of immediately available funds to the account designated in such instruction.
15
(c)
(i) With
respect to any Milestone Payment Amount that is payable to an Equity Award Holder in respect of such holder’s Company Equity Awards
(including, for the avoidance of doubt, any amounts payable in respect of a Closing Date Underwater Option in accordance with the terms
of this Agreement), Parent or the Company shall, or shall cause an Affiliate thereof to, pay, no later than the first regularly-scheduled
payroll date that occurs more than five Business Days after the Milestone Payment Date, the aggregate Milestone Payment Amount due to
such Equity Award Holder in respect of such holder’s Company Equity Awards (net of any withholding Taxes required to be deducted
and withheld in accordance with Section 2.4(d)). Notwithstanding anything in this Agreement to the contrary, it is the intent
of Parent and the Company that each Milestone shall be deemed to constitute a substantial risk of forfeiture within the meaning of Section 409A
of the Code and that any Milestone Payment Amounts payable in respect of Company Equity Awards be exempt from Section 409A of the
Code and in all events be paid no later than March 15 of the calendar year following the year in which the Milestone is achieved.
For purposes of Section 409A of the Code, each Milestone Payment Amount in respect of a Company Equity Award shall be treated as
a separate payment.
(ii) Payment
in accordance with this Section 2.4(c) shall be made through the applicable payroll system or payroll provider or, if
payment cannot be made through payroll, then Parent or the Company will issue a check for such payment to such Equity Award Holder (less
applicable withholding Taxes, if any), which check will be sent by overnight courier to the most recent address on the Company’s
personnel records for such Equity Award Holder as soon as reasonably practicable following the Milestone Payment Date.
(iii) For
the avoidance of doubt, in the event an Equity Award Holder also received CVRs in respect of Shares held immediately prior to the Effective
Time, such CVRs in respect of such Shares are not subject to the provisions of this Agreement relating to CVRs issued in respect of Company
Equity Awards and payment will be made in respect thereof in accordance with Section 2.4(b).
(d) Each
of the Rights Agent, Parent, the Company and their respective Affiliates shall be entitled to deduct and withhold from any amounts payable
pursuant to this Agreement such amounts as it is required to deduct and withhold by any applicable Tax Laws. Prior to making any such
Tax deductions or withholdings or causing any such Tax deductions or withholdings to be made with respect to any Holder (other than an
Equity Award Holder, in its capacity as such), the applicable withholding agent shall, to the extent practicable, timely provide notice
to the Holder of such potential withholding and, if applicable, a reasonable opportunity for the Holder to provide any necessary tax
forms or other information in order to avoid or reduce such withholding amounts if such forms or information were not solicited pursuant
to Section 2.4(a)(i); provided, however, that the time period for payment of a Milestone Payment Amount by
the Rights Agent set forth in this Section 2.4 shall be extended by a period equal to any delay caused by the Holder providing
such forms. Any amounts deducted or withheld and remitted to the appropriate Governmental Authority shall be treated for all purposes
under this Agreement and the Merger Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
Parent shall deliver (or shall cause the Rights Agent, the Company or its applicable Affiliate to deliver) to the Person with respect
to whom such withholding is made an IRS Form 1099 or other reasonably acceptable evidence of such deduction or withholding. Notwithstanding
anything to the contrary herein, Parent shall direct and instruct the Rights Agent regarding the Tax information reporting with respect
to any Milestone Payment Amount under any applicable Tax Law, and the Rights Agent will comply with any Tax reporting obligations in
accordance with applicable Tax Laws and Parent’s instructions; provided, however, that the Rights Agent shall have no responsibilities
with respect to tax withholding, reporting or payment except as specifically instructed in writing by Parent.
16
(e) Any
portion of the aggregate Milestone Payment Amounts that remain undistributed to the Holders on the date that is twelve (12) months after
the date of the applicable Milestone Achievement Notice shall be delivered by the Rights Agent to Parent and any Holder shall thereafter
look only to Parent and the Company (subject to abandoned property, escheat and other similar applicable Law) for payment of such Holder’s
applicable Milestone Payment Amount, without interest, but such Holder shall have no greater rights against Parent or the Company than
those accorded to general unsecured creditors of Parent and the Company under applicable Laws.
(f) None
of Parent, the Company, the Rights Agent or any of their respective Affiliates shall be liable to any person in respect of any Milestone
Payment Amounts delivered to a public official in compliance with any applicable state, federal or other abandoned property, escheat
or similar Law. If such Milestone Payment Amount has not been paid prior to the date on which such Milestone Payment Amount would otherwise
escheat to or become the property of any Governmental Authority, any such Milestone Payment Amount shall, to the extent permitted by
applicable Laws, immediately prior to such time become the property of Parent, free and clear of all claims or interest of any person
previously entitled thereto. In addition to and not in limitation of any other indemnity obligation herein, Parent agrees to indemnify
and hold harmless the Rights Agent with respect to any liability, penalty, cost or expense the Rights Agent may incur or be subject to
in connection with transferring such property to Parent. The indemnification provided by this Section 2.4(f) shall survive
the resignation, replacement or removal of the Rights Agent and the termination of this Agreement.
(g) Except
to the extent any portion of any Milestone Payment Amount is required to be treated as imputed interest pursuant to applicable Laws and
except to the extent required by applicable Tax Laws, the Parties hereto intend to treat the Holder’s receipt of the CVRs as an
open transaction for U.S. federal income tax purposes and the Milestone Payment Amounts made with respect to CVRs issued in exchange
for Shares pursuant to the Merger Agreement for U.S. federal and applicable state and local income Tax purposes as additional consideration.
Parent and the Company shall report imputed interest on the CVRs as required by applicable Laws.
(h) The
Parties intend, to the extent consistent with applicable Laws, to treat Milestone Payments made in respect to CVRs with respect to the
Company Equity Awards pursuant to the Merger Agreement for all U.S. federal and applicable state and local income Tax purposes as compensation
payments (and not to treat the issuance of the CVR to the Equity Award Holder as a payment itself).
17
Section 2.5 No
Voting, Dividends or Interest; No Equity or Ownership Interest in Parent or the Company. Nothing contained in this Agreement shall
be construed as conferring upon any Holder, by virtue of being a Holder of a CVR, the right to receive dividends or other distributions
or the right to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of
directors of Parent or the Company or any constituent company to the Merger or any of their respective Subsidiaries or Affiliates or
any other matter, or any other rights of any kind or nature whatsoever as a stockholder of Parent or the Company or in any constituent
company to the Merger or any of their respective Subsidiaries or Affiliates, either at law or in equity. The CVRs shall not represent
any equity or ownership interest in Parent or the Company or in any constituent company to the Merger or any of their respective Subsidiaries
or Affiliates. The rights of a Holder in respect of the CVRs are limited to those contract rights specifically expressed in this Agreement.
Section 2.6 Enforcement
of Rights of Holders. Any Actions seeking the enforcement of the rights of Holders hereunder may be brought by or at the direction
of the Acting Holders pursuant to and to the extent provided in Section 6.7.
Section 2.7 Ability
to Abandon CVR. A Holder may, at any time and at such Holder’s option, abandon all of such Holder’s remaining rights
in such Holder’s CVRs, by transferring such CVRs to Parent or any of its Affiliates without consideration therefor, which a Holder
may effect by delivery of a written notice of such abandonment to Parent and the Rights Agent, and such rights will be canceled, with
the Rights Agent being promptly notified in writing by Parent of such transfer and cancellation. Nothing in this Agreement shall prohibit
Parent or any of its Affiliates from offering to acquire or acquiring any CVRs for consideration from any Holder, in private transactions
or otherwise, in its sole discretion. Any CVRs acquired by Parent or any of its Affiliates shall be automatically deemed extinguished
and no longer outstanding for purposes of the definitions of “Acting Holders”, “Aggregate Excess Exercise
Price”, “Milestone Payment” and “Milestone Payment Amount,” Article V and
Section 6.3.
Article III
The
Rights Agent
Section 3.1 Certain
Duties and Responsibilities. Parent and the Company hereby appoint the Rights Agent to act as rights agent for Parent and the Company
in accordance with the express terms and conditions set forth in this Agreement (and no implied terms and conditions), and the Rights
Agent hereby accepts such appointment. The Rights Agent shall not have any liability for any actions taken, suffered or omitted to be
taken in connection with this Agreement, except to the extent of its gross negligence, willful misconduct, fraud or bad faith (each as
determined by a final non-appealable judgment of a court of competent jurisdiction). The Rights Agent shall not have any duty or responsibility
in the case of the receipt of any written demand from any Holders with respect to any action, default or breach by Parent or the Company,
including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any Actions
at law or otherwise or to make any demand upon Parent or the Company. All Parties shall be entitled to rely on any action by the Rights
Agent as if such action is an action of the Holders, unless the Acting Holders have elected to take such action pursuant to Section 6.7.
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Section 3.2 Certain
Rights of the Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth
in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agent. In addition:
(a) the
Rights Agent may rely and shall be protected and held harmless by Parent and the Company in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document
believed by it in the absence of bad faith (determined by a final non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction) to be genuine and to have been signed or presented by the proper Party or Parties;
(b) whenever
the Rights Agent deems it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
the Rights Agent may request and rely upon an Officer’s Certificate, which certificate shall be full authorization and protection
to the Rights Agent, and the Rights Agent shall, in the absence of gross negligence, willful misconduct, fraud or bad faith (each as
determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction) by the Rights Agent, incur
no liability and be held harmless by Parent and the Company for or in respect of any action taken, suffered or omitted to be taken by
it under the provisions of this Agreement in reliance upon such Officer’s Certificate;
(c) the
Rights Agent may engage and consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection for the Rights Agent, and the Rights Agent shall be held harmless by Parent and the
Company in respect of any action taken, suffered or omitted by it hereunder in the absence of gross negligence, bad faith or willful
misconduct (each as determined by a final non-appealable order, judgment, decree or ruling of a court of competent jurisdiction) and
in reliance thereon;
(d) the
permissive rights of the Rights Agent to do things enumerated in this Agreement shall not be construed as a duty;
(e) the
Rights Agent shall not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the
CVRs;
(f) the
Rights Agent shall not be liable for or by reason of, and shall be held harmless by Parent and the Company with respect to, any of the
statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are
and shall be deemed to have been made by Parent and the Company only;
(g) the
Rights Agent shall have no liability and shall be held harmless by Parent and the Company in respect of the validity of this Agreement
and the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this
Agreement against the Rights Agent assuming the due execution and delivery hereof by Parent and the Company), nor shall it be responsible
for any breach by Parent or the Company of any covenant or condition contained in this Agreement;
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(h) Parent
agrees to indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, suit, cost or expense (including the reasonable and documented out-of-pocket expenses and counsel fees and
other disbursements) (collectively, “Losses”) arising out of or in connection with the Rights Agent’s preparation,
delivery, negotiation, amendment, execution, and administration of this Agreement and the exercise and performance by the Rights Agent
of its duties under this Agreement, including the reasonable and documented out-of-pocket costs and expenses of counsel in defending
the Rights Agent against any such Losses, unless such Losses have been determined by a final non-appealable judgment of a court of competent
jurisdiction to be a result of the Rights Agent’s gross negligence, willful misconduct, bad faith or fraud;
(i) notwithstanding
anything to the contrary herein, the Rights Agent shall not be liable for special, punitive, indirect, consequential or incidental losses
or damages of any kind whatsoever (including, but not limited to, lost profits) arising under any provision of this Agreement, even if
the Rights Agent has been advised of the likelihood of such loss or damage or has foreseen the possibility or likelihood of such damages;
(j) Parent
agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement as agreed upon in writing by the Rights
Agent and Parent on or prior to the Effective Time, and (ii) to reimburse the Rights Agent for (x) all Taxes other than withholding
Taxes owed by Holders and Taxes imposed on or measured by the Rights Agent’s net income and franchise or similar Taxes imposed
on it (in lieu of net income Taxes) and (y) governmental charges, reasonable and documented out-of-pocket expenses and other reasonable
and documented out-of-pocket charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than
Taxes); provided that, if the Rights Agent has received a refund or any Tax or governmental charge or other amounts borne by Parent
pursuant to clause (x) or (y) of this sentence, then the Rights Agent shall promptly repay such refund to Parent.
The Rights Agent shall also be entitled to reimbursement from Parent for all reasonable and documented necessary out-of-pocket expenses
paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder;
(k) no
provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it;
(l) other
than for guarantees of signature as provided in Section 2.3(d), no Holder shall be obligated to indemnify the Rights Agent
for, or hold the Rights Agent harmless against, any loss, liability, claim, demand, suit or expense arising out of or in connection with
the Rights Agent’s duties under this Agreement or to pay or reimburse the Rights Agent for any fees, costs or expenses incurred
by the Rights Agent in connection with this Agreement or the administration of its duties hereunder, and the Rights Agent shall not be
entitled to deduct any amount from any Milestone Payment Amount in any circumstance except as provided in Section 2.4(d);
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(m) the
Rights Agent may exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself (through its directors,
officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any
act, omission, default, neglect or misconduct of any such attorneys or agents, absent gross negligence, willful misconduct, fraud or
bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction) in the selection and continued
employment thereof;
(n) notwithstanding
anything to the contrary herein, the Rights Agent’s aggregate liability with respect to, arising from, or arising in connection
with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or
otherwise, is limited to, and shall not exceed, the amounts paid hereunder by Parent to the Rights Agent as fees and charges, but not
including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent
is being sought, absent gross negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment
of a court of competent jurisdiction);
(o) the
Rights Agent shall act hereunder solely as agent for Parent and the Company and it shall not assume any obligations or relationship of
agency or trust with any of the Holders;
(p) unless
otherwise specifically prohibited by the terms of this Agreement, the Rights Agent and any stockholder, affiliate, member, director,
officer, agent, representative or employee of the Rights Agent may buy, sell or deal in any of the securities of Parent or become pecuniarily
interested in any transaction in which Parent may be interested, or contract with or lend money to Parent or otherwise act as fully and
freely as though it were not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent or any such stockholder,
affiliate, director, member, officer, agent, representative or employee from acting in any other capacity for Parent or for any other
Person;
(q) the
Rights Agent shall have no obligation under this Agreement to calculate the amounts payable hereunder including, but not limited to,
the Milestone Payments due to Holders and any stamp, Tax, or governmental charge payable by Parent, Company or Holders, nor shall the
Rights Agent have any duty or obligation to investigate or confirm whether Parent’s or the Company’s determination of the
Milestone Payments due to Holders is accurate or correct;
(r) the
Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the
Rights Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith, unless and until
it has received such notice in writing; and
(s) the
provisions of Section 2.4(f), Section 3.1 and this Section 3.2 shall survive the termination of this
Agreement and the resignation, replacement or removal of the Rights Agent, and the payment, termination and the expiration of the CVRs
or this Agreement.
Section 3.3 Funds
Received All funds received by Computershare under this Agreement that are to be distributed or applied by Computershare in the performance
of services hereunder (the “Funds”) shall be held by Computershare as agent for Parent and deposited in one or more
bank accounts to be maintained by Computershare in its name as agent for Parent. Until paid pursuant to the terms of this Agreement,
Computershare will hold the Funds through such accounts in: (a) short-term direct obligations of the U.S., (b) short-term obligations
for which the full faith and credit of the U.S. is pledged to provide for the payment of principal and interest, (c) short-term
commercial paper rated the highest quality by either Moody’s Investors Service, Inc. or Standard and Poor’s Ratings
Services or (d) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital
exceeding $1 billion. The Rights Agent shall have no responsibility or liability for any diminution of the Funds that may result from
any deposit or investment made by Computershare in accordance with this Section 3.3, including any losses resulting from
a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or
other earnings in connection with such deposits or investments. Computershare shall not be obligated to pay such interest, dividends
or earnings to Parent, any Holder or any other Party, other than as part of any repayment to Parent in accordance with Section 2.4(e).
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Section 3.4 Resignation
and Removal; Appointment of Successor.
(a) The
Rights Agent may resign at any time by giving written notice thereof to Parent specifying a date when such resignation will take effect,
which notice shall be sent at least thirty (30) days prior to the date so specified, and such resignation become effective on the date
so specified. Parent has the right to remove the Rights Agent at any time by specifying a date when such removal shall take effect, but
no such removal shall become effective until the earlier of (A) the date so specified and (B) the appointment of a successor
Rights Agent. Notice of such removal shall be given by Parent to the Rights Agent, which notice shall be sent at least thirty (30) days
prior to the date so specified.
(b) If
the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, Parent shall, as soon as is reasonably
possible, appoint a qualified successor Rights Agent who shall be a stock transfer agent of national reputation or the corporate trust
department of a commercial bank. Notwithstanding the foregoing, if Parent shall fail to make such appointment within a period of thirty
(30) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Rights Agent, then the Acting Holders may apply to any court of competent jurisdiction for the appointment of a new
Rights Agent. The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.5,
become the successor Rights Agent.
(c) Parent
shall give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent through the
facilities of DTC in accordance with DTC’s procedures or by mailing written notice of such event by first-class mail to the Holders
as their names and addresses appear in the CVR Register. Each notice shall include the name and address of the successor Rights Agent.
If Parent fails to send such notice within ten (10) Business Days after acceptance of appointment by a successor Rights Agent, the
successor Rights Agent shall cause the notice to be mailed at the expense of Parent. Parent’s failure to give any notice provided
for in this Section 3.4(c), however, shall not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
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(d) The
Rights Agent will cooperate with Parent and any successor Rights Agent as reasonably requested in connection with the transition of the
duties and responsibilities of the Rights Agent to the successor Rights Agent, including transferring the CVR Register to the successor
Rights Agent; provided, that such predecessor Rights Agent shall not be required to make any additional expenditure without compensation
or reimbursement by Parent or assume any additional liability in connection with the foregoing.
Section 3.5 Acceptance
of Appointment by Successor. Every successor Rights Agent appointed hereunder shall, at or prior to such appointment, execute, acknowledge
and deliver to Parent and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement,
and thereupon such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Rights Agent. On request of Parent or the successor Rights Agent, the retiring Rights Agent shall execute
and deliver an instrument transferring to the successor Rights Agent all the rights, powers, duties and trusts of the retiring Rights
Agent, except such rights which survive its resignation, replacement or removal under the terms hereunder.
Article IV
Covenants
Section 4.1 List
of Holders. Parent shall furnish or cause to be furnished to the Rights Agent, (a) promptly after the Effective Time and in
no event later than ten (10) Business Days following the Effective Time, the names, addresses and CVR holdings of the Holders (i) other
than Equity Award Holders, holders of Company Warrants and holders of Convertible Notes, in such form as Parent receives from the Company’s
transfer agent (or other agent performing similar services for the Company), and (ii) with respect to Equity Award Holders, in such
form as set forth in the records of the Company as of immediately prior to the Effective Time and (b) promptly following (i) in
the case of Company Warrants, the exercise of a Company Warrant in exchange for the receipt of the Merger Consideration in accordance
with the Merger Agreement and the applicable Company Warrant or (ii) in the case of Convertible Notes, the conversion of a Convertible
Note into the Reference Property in accordance with the Convertible Notes Indenture, the Supplemental Indenture and the Convertible Notes,
and in no event later than ten (10) Business Days following such date, the name, address and CVR holdings of the Holder with respect
to such Company Warrant or Convertible Note, in such form as set forth in the records of the Company as of immediately prior to such
time. The Rights Agent will reflect all such names and addresses on the CVR Register and confirm with Parent the write up of the CVR
Register and list of initial and updated Holders to Parent, as applicable, promptly after Parent has furnished the information referenced
in clause (a) and (b) hereof and, in any event, within thirty (30) days of the receipt of such names and addresses
from Parent or the Company’s transfer agent, as the case may be.
Section 4.2 Payment
of Milestone Payments. All payment obligations with respect to the CVRs hereunder shall be the joint and several obligations of Parent
and the Company. Parent or the Company will duly deposit or cause to be deposited with the Rights Agent, for payment to the Holders,
when payable in accordance with the terms of this Agreement, the applicable Milestone Payment Amount to be made to each Holder in accordance
with Section 2.4(a) hereof (other than Equity Award Holders, in respect of which any Milestone Payment Amount in respect
of their Company Equity Awards shall be paid in accordance with Section 2.4(c) hereof). For the avoidance of doubt,
Parent or the Company may designate a wholly-owned Subsidiary of Parent or the Company to deposit the aggregate Milestone Payment Amount
for a given Milestone in accordance with the preceding sentence, and such deposit by such wholly-owned Subsidiary shall satisfy and discharge
Parent’s and the Company’s obligations in the preceding sentence. Such amounts shall be considered paid on the applicable
Milestone Payment Date if on such date the Rights Agent has received in accordance with this Agreement money sufficient to pay all such
amounts then due. If a Milestone has not been achieved prior to the expiration of the applicable Milestone Period, then neither Parent
nor the Company nor any of their respective Affiliates will be required to make any payment to the Rights Agent or the Holders pursuant
to this Agreement with respect to such Milestone.
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Section 4.3 Assignment
Transactions; Change in Control.
(a) Prior
to the earlier of (x) the achievement of a given Milestone and (y) expiration of the applicable Milestone Period for such Milestone,
Parent and the Company shall not, and shall cause their respective Affiliates not to, consummate any Assignment Transaction involving
development, commercialization or regulatory rights or obligations with respect to the Products applicable to such Milestone in the United
States or, in connection with such Assignment Transaction, elect to be released from any and all obligations hereunder to the extent
relating to the applicable Products and corresponding Milestones, unless, as a condition to such Assignment Transaction or release, the
acquiring Person (each such Person, an “Assignment Transaction Acquiror”), expressly assumes, by an assumption agreement,
executed and delivered to the Rights Agent, substantially in the form attached as Annex A, the due and punctual payment of the
Milestone Payment Amounts if and when payable in accordance with the terms of this Agreement, and the performance or observance of every
covenant of this Agreement not yet performed or observed on the part of Parent or the Company (as applicable) to be performed or observed
to the extent relating to the applicable Products and corresponding Milestone, the applicable Total Milestone Payment and the applicable
Milestone Payment Amounts, in which case Parent shall not be liable for and shall be released from any and all obligations hereunder
to the extent relating to the applicable Products and corresponding Milestones; provided, however that Parent and the Company
shall remain liable following such Assignment Transaction for the performance by any Assignment Transaction Acquiror of the obligations
hereunder unless such Assignment Transaction Acquiror is a Significant Pharmaceutical Company; and provided further that no such
Assignment Transaction shall be structured or effected with the primary intent of avoiding the achievement of any Milestone or reducing
the Milestone Payment Amounts.
(b) Notwithstanding
Section 4.3(a), Parent may, in its sole discretion and without the consent of any other party, consummate any Change in Control
(it being understood that the provisions of Section 4.3(a) shall not be applicable to a Change in Control); provided
that Parent and the Company will reconfirm their respective obligations, duties and covenants under this Agreement and, solely in the
event that the obligations set forth in this Agreement would not continue to be obligations of Parent, or would not have been assumed
by operation of Law, Parent will cause the Person acquiring or succeeding to Parent in connection with such Change in Control (to the
extent applicable pursuant to the structure of such Change in Control) to assume Parent’s obligations under this Agreement, effective
as of the effective time of such Change in Control and in an instrument supplemental hereto executed and delivered by such Person to
the Rights Agent. No later than thirty (30) days following the consummation of any such Change in Control, Parent will deliver to the
Rights Agent an Officer’s Certificate, stating that such Change in Control complies with this Section 4.3(b). For the
avoidance of doubt, any Change in Control of Parent shall have no impact on the Company’s obligations under this Agreement, which
shall continue in full force and effect following such Change in Control.
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Section 4.4 Books
and Records; Updates. Parent and the Company shall, and shall cause their respective Affiliates to, keep records in sufficient detail
to enable the Specified Holders and the Rights Agent to determine compliance with the terms of this Agreement, including the amounts
payable hereunder; provided, however, the Rights Agent shall have no obligation under this Agreement to calculate the amounts payable
hereunder in accordance with Section 3.2(q) hereof. On a Product-by-Product basis, within ninety (90) days after the
end of each calendar fiscal year of the Company during the applicable Milestone Period with respect to such Product, Parent and the Company
will provide to the Specified Holders a written update describing in reasonable detail the status and amount of gross sales of all such
Products sold during such calendar year and the calculation of Net Sales on such sales, including the amount of any deductions provided
for in the definition of Net Sales for such applicable period; provided that no Specified Holder shall be entitled to receive
such update unless such Specified Holder is subject to a confidentiality agreement with or for the benefit of Parent and the Company
with respect to the contents thereof that is reasonably satisfactory to Parent (such Specified Holders, the “Notice Holders”).
Each such report shall be provided to the Notice Holders at their respective addresses as reflected in the CVR Register in accordance
with the procedures for giving notices under Section 6.3 or pursuant to any such other procedures as may be agreed by Parent
and each such Notice Holder. Parent may direct the Rights Agent to deliver the updates described in this Section 4.4 and
the Rights Agent shall deliver such update, provided that Parent prepares and delivers a copy of such update and the identity of the
Notice Holders to the Rights Agent at least five (5) Business Days prior to the date of delivery specified by Parent. Upon the reasonable
request of the Rights Agent or the Notice Holders, Parent will make available by telephone or videoconference the relevant personnel
involved in the preparation of such update for the purpose of responding to the Rights Agent’s or the Notice Holders’ reasonable
questions regarding the contents of each such update by no more than one (1) meeting by telephone or video conference, for each
of the Rights Agent and all such requesting Notice Holders, for each such update. The Specified Holders shall have no liability to any
of the Holders for any actions taken or not taken in connection with this Section 4.4.
Section 4.5 Diligent
Efforts.
(a) Parent
and the Company shall, and shall cause its (and their) Affiliates to, use Diligent Efforts to achieve each Milestone prior to the end
of the applicable Milestone Period. Neither Parent, the Company nor any of their respective Affiliates shall take any action or fail
to take any action whose primary purpose is to avoid the achievement of any Milestone or the payment of any Milestone Payment Amounts.
Parent and the Company each hereby expressly disclaim any extra-contractual covenants, obligations or undertakings with respect to the
Milestone or the Milestone Payment; provided, however, that nothing in this Agreement shall limit or exclude liability
for intentional fraud. The Rights Agent hereby expressly acknowledges and agrees, and by virtue of their receipt of the CVRs the Holders
will be deemed to expressly acknowledge and agree, that Parent and the Company each hereby expressly disclaim any extra-contractual covenants,
obligations, undertakings, representations or warranties with respect to the Milestone or the Milestone Payment, and each expressly acknowledges
and agrees that they have not relied upon any such covenant, obligation, undertaking, representation or warranty and the sole obligations
of Parent, the Company and their respective Affiliates shall be solely the contractual obligations of Parent and the Company expressly
set forth in this Agreement. For the avoidance of doubt, Parent and the Company may satisfy their obligations to use Diligent Efforts
hereunder through one or more sublicensees, including distributors, contract manufacturers, contractors or other third parties; provided
that Parent and the Company shall remain responsible for the performance of such obligations and shall use Diligent Efforts in selecting,
contracting with and overseeing such Person in a manner consistent with the standard set forth in the definition of “Diligent Efforts.”
25
(b) Parent
and the Company’s obligations in Section 4.5(a) with respect to each Milestone shall terminate in full with respect
to such Milestone on the earlier to occur of the achievement of such Milestone or the end of the applicable Milestone Period. The termination
date is included solely to limit the time during which Parent and the Company are obligated to use Diligent Efforts and does not impose
any obligation (express or implied) on Parent or the Company to achieve any Milestone by such termination date. Subject to the foregoing
and with respect to Parent’s and the Company’s respective obligations to use Diligent Efforts as set forth in Section 4.5(a),
(i) Parent and its Affiliates shall have the right, in their sole and absolute discretion, to direct and control the development,
marketing, commercialization and sale of the Products in all respects and (ii) Parent (directly or through its Affiliates) shall
not otherwise be required (expressly or implicitly) to achieve or undertake any level of efforts, and a failure to achieve a Milestone
shall not, in and of itself, be deemed a breach of this Agreement.
Article V
Amendments
Section 5.1 Amendments
without Consent of Holders.
(a) Without
the consent of any Holders, Parent and the Company, at any time and from time to time, may enter into one or more amendments hereto with
the Rights Agent, for any of the following purposes:
(i) to
evidence the succession of another Person as a successor Rights Agent and the assumption by any such successor of the covenants and obligations
of the Rights Agent herein;
(ii) to
add to the covenants of Parent or the Company such further covenants, restrictions, conditions or provisions as Parent and the Company
shall consider to be for the protection of the Holders; provided that, in each case, such provisions do not adversely affect the
interests of the Holders;
(iii) to
cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising under this Agreement, provided that, in each case,
such provisions do not materially adversely affect the interests of the Holders;
26
(iv) as
may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange Act or
any applicable state securities or “blue sky” Laws; provided that such amendments do not materially adversely affect
the interests of the Holders;
(v) to
cancel and reduce the number of CVRs, in the event any Holder (A) abandons such Holder’s rights to such CVRs in accordance
with Section 2.7 (or is otherwise deemed to have abandoned such rights), (B) transfers such Holder’s CVRs to Parent
or its Affiliates in accordance with Section 2.7, or (C) agrees to renounce such Holder’s rights under this Agreement
in accordance with Section 6.11;
(vi) subject
to Section 4.3 and Section 6.10, to evidence the succession of another Person to Parent or the Company and the
assumption by any such successor of the covenants of Parent or the Company contained herein;
(vii) to
evidence the assignment of this Agreement by Parent or the Company as provided in Section 4.3 or Section 6.10,
as applicable; or
(viii) any
other amendment to this Agreement that would provide any additional rights or benefits to the Holders or that does not materially adversely
affect the legal rights under this Agreement of any such Holder.
(b) Promptly
after the execution and delivery by Parent, the Company and the Rights Agent of any amendment pursuant to the provisions of this Section 5.1,
Parent shall mail or otherwise deliver (or cause the Rights Agent to mail or otherwise deliver) a notice thereof in accordance with Section 6.3
to the Holders, setting forth such amendment.
Section 5.2 Amendments
with Consent of Holders.
(a) Subject
to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the Holders), with
the prior consent of the Acting Holders, whether evidenced in writing or taken at a meeting of the Holders, Parent, the Company and the
Rights Agent may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement,
even if such addition, elimination or change is materially adverse to the interest of the Holders.
(b) Promptly
after the execution and delivery by Parent, the Company and the Rights Agent of any amendment pursuant to the provisions of this Section 5.2,
Parent shall mail or otherwise deliver (or cause the Rights Agent to mail or otherwise deliver) a notice of such amendment to the Holders
in accordance with Section 6.3.
Section 5.3 Execution
of Amendments. As a condition precedent to the execution of any amendment permitted by this Article V, the Rights Agent
shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. Each amendment to this Agreement shall be evidenced by a writing signed by the
Rights Agent, Parent and the Company. The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights
Agent’s own rights, obligations, privileges, immunities, protections, covenants or duties under this Agreement or otherwise. No
supplement or amendment to this Agreement shall be effective unless duly executed by the Rights Agent.
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Section 5.4 Effect
of Amendments. Upon the execution of any amendment under this Article V, this Agreement shall be modified in accordance
therewith, such amendment shall form a part of this Agreement for all purposes and every Holder shall be bound thereby.
Article VI
Miscellaneous
and General
Section 6.1 Termination.
This Agreement will be terminated and of no force or effect, the Parties will have no liability hereunder (other than pursuant to Section 3.2(s) and
pursuant to any other provisions that expressly survive termination) and no payments will be required to be made, upon the earlier to
occur of (i) the payment of all Milestone Payment Amounts required to be paid under the terms of this Agreement in accordance with
Section 2.4(a), (b) and (c), and (ii) the date on which neither Milestone may thereafter be achieved
(provided that in no event shall this Agreement terminate prior to Parent finally determining (A) the Net Sales of the Bempedoic
Acid Products for the Bempedoic Acid Milestone Period in accordance with this Agreement, and (B) the Net Sales of the Enbumyst Product
in accordance with this Agreement for the calendar year ending on December 31, 2030 in the event that the Enbumyst Milestone has
not been achieved in any prior calendar year). For the avoidance of doubt (1) the termination of this Agreement will not affect
or limit the right to receive a Milestone Payment Amount under Section 2.4 to the extent earned but not paid prior to termination
of this Agreement, and in such case the provisions applicable thereto will survive the expiration or termination of this Agreement and
(2) notwithstanding anything to the contrary set forth herein, the right of any Holder to receive a Milestone Payment Amount for
a given Milestone, and all covenants and obligations of Parent, the Company and their respective Affiliates with respect to the Milestone
Payment Amounts for such Milestone, shall be irrevocably terminated and extinguished if such Milestone is not achieved prior to the expiration
of the applicable Milestone Period (after Parent has finally determined (x) the Net Sales of the Bempedoic Acid Products for the
Bempedoic Acid Milestone Period in accordance with this Agreement, and (y) the Net Sales of the Enbumyst Product in accordance with
this Agreement for the calendar year ending on December 31, 2030 in the event that the Enbumyst Milestone has not been achieved
in any prior calendar year); provided that the termination of this Agreement shall not affect or limit the Holders’ right
to pursue claims for breach of covenants or other obligations which occurred prior to the expiration of the applicable Milestone Period
and, in each case, the provisions applicable thereto will survive the expiration or termination of this Agreement.
Section 6.2 Notices
to the Rights Agent and Parent or the Company. Any notice or other communication required or permitted to be delivered to any Party
under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered
by hand, (b) upon confirmed delivery if being sent by registered mail or by courier or overnight delivery or other express delivery
service, (c) with respect to any Person other than the Rights Agent, if sent by email transmission prior to 6:00 p.m. recipient’s
local time, upon transmission (provided that no “bounce back” or similar message of non-delivery is received with
respect thereto) or (d) with respect to any Person other than the Rights Agent, if sent by email transmission after 6:00 p.m. recipient’s
local time and no “bounce back” or similar message of non-delivery is received with respect thereto, the Business Day following
the date of transmission; provided that in each case the notice or other communication is sent to the physical address or email
address set forth beneath the name of such Party below (or to such other physical address or email address as such Party shall have specified
in a written notice given to the other Parties hereto):
28
If
to Parent or the Company:
Essence Parent Inc.
c/o ArchiMed SAS
Silex2
9 Rue des Cuirassiers
69003 Lyon
France
Attention: Justin Bateman
Email: [***]
In each case, with a copy to (which shall not
constitute notice):
Sidley Austin LLP
787 7th Avenue
New York, NY 10019
Attention: David D’Urso; Adam Cromie
Email: ddurso@sidley.com; adam.cromie@sidley.com
If to the Rights Agent:
Computershare Inc.
Computershare Trust Company, N.A.
150 Royall Street
Canton, MA 02021
Attention: Client Services
Section 6.3 Notice
to Holders. Where this Agreement provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing provided through the facilities of DTC (if applicable) or by any of the means permitted under Section 6.2(a) through
(c), mutatis mutandis, and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s
address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
29
Section 6.4 Governing
Law; Jurisdiction; WAIVER OF JURY TRIAL.
(a) This
Agreement, the CVRs and all actions arising under or in connection therewith shall be governed by, and construed in accordance with,
the Laws of the State of Delaware, without giving effect to any Laws, rules or provisions that would cause the application of the
Laws of any jurisdiction other than the State of Delaware. Subject to Section 6.4(b), in any action or proceeding arising
out of or relating to this Agreement (excluding, for clarity, any matter finally determined by an accounting firm or valuation expert
as expressly set forth in the definition of Net Sales): (i) each of the Parties irrevocably and unconditionally consents and submits
to the exclusive jurisdiction and venue of the Chancery Court of the State of Delaware and any state appellate court therefrom or, if
such court lacks subject matter jurisdiction, the state and federal courts in the State of Delaware (it being agreed that the consents
to jurisdiction and venue set forth in this Section 6.4(a) shall not constitute general consents to service of process
in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer
rights on any Person other than the Parties hereto); and (ii) each of the Parties irrevocably consents to service of process by
any means permitted under Section 6.2 (provided that nothing
in this Section 6.4(a) shall affect the right of any Party to serve
legal process in any other manner permitted by applicable Laws). The Parties hereto agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
applicable Laws; provided that nothing in the foregoing shall restrict any Party’s rights to seek any post-judgment relief
regarding, or any appeal from, such final trial court judgment.
(b) EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BETWEEN THE PARTIES HERETO ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.5 No
Waiver; Remedies Cumulative. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement,
and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver
of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or remedy. No Party shall be deemed to have waived any
claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim,
power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party;
and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
Section 6.6 Entire
Agreement; Counterparts. As between Parent and the Company, on the one hand, and the Holders, on the other hand, this Agreement,
the Merger Agreement and the other agreements, exhibits, annexes and schedules referred to herein constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, between such parties, with respect to the subject matter hereof
and thereof. As between Parent and the Company, on the one hand, and the Rights Agent, on the other hand, this Agreement and any schedule
or exhibit attached hereto constitutes the entire agreement and supersede all prior agreements and understandings, both written and oral,
between such parties, with respect to the subject matter hereof and thereof. This Agreement may be executed in several counterparts,
each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed
Agreement (in counterparts or otherwise) by DocuSign, PDF or similar means shall be sufficient to bind the Parties to the terms and conditions
of this Agreement.
30
Section 6.7 Third-Party
Beneficiaries; Action by Acting Holders.
(a) Parent,
the Company and the Rights Agent hereby agree that, subject to Section 6.7(b) below, the respective covenants and agreements
set forth herein (except for the rights of the Rights Agent expressly granted to the Rights Agent herein) are intended to be for the
benefit of, and shall be enforceable by, the Acting Holders, who (along with all other Holders) are intended to be a third-party beneficiary
hereof. Parent, the Company and the Rights Agent further agree that, subject to Section 6.7(b) below, this Agreement
and their respective covenants and agreements set forth herein are solely for the benefit of Parent, the Company, the Rights Agent, the
Holders and their permitted successors and assigns hereunder in accordance with and subject to the terms of this Agreement, and nothing
in this Agreement, express or implied, will confer upon any Person other than Parent, the Company, the Rights Agent, the Holders and
their permitted successors and assigns hereunder any benefit or any legal or equitable right, remedy or claim hereunder.
(b) Except
for the rights of the Rights Agent expressly granted to the Rights Agent herein, the Acting Holders will have the sole right, on behalf
of all Holders, by virtue of or under any provision of this Agreement, to institute any Action at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Agreement, and no individual Holder or other group of Holders will be entitled to exercise
such rights; provided that the foregoing shall not limit the ability of an individual Holder to seek a payment due from the applicable
party pursuant to Section 2.4 solely to the extent that such payment has been finally determined to be due and payable under
this Agreement and has not been paid when due; and provided, further, that only the Acting Holders (or, solely to the extent
provided in the preceding proviso, an individual Holder) may enforce any such legal or equitable rights, remedies or claims under this
Agreement against Parent and/or the Company and not the Rights Agent. In any such action (other than an action by an individual Holder
to seek a payment due from the applicable party pursuant to Section 2.4), the Acting Holders shall be deemed to represent
all Holders. Amounts collected by the Acting Holders in any action in which the Acting Holders are deemed to represent all Holders shall
be paid first to reimburse the legal fees and other costs and expenses incurred by the Acting Holders and the balance shall be distributed
to all Holders. The Acting Holders, in acting pursuant to this Section 6.7 on behalf of all Holders, shall have no liability
to any other Holders for any such actions. Any Action brought by the Acting Holders (or by any individual holder to seek a payment due
from the applicable party pursuant to Section 2.4) shall be subject to Section 6.4, the terms of which shall
apply to the Acting Holders or such Holder, as applicable, and such Action mutatis mutandis.
Section 6.8 Specific
Performance. Parent, the Company and the Holders acknowledge and agree that, in the event of any breach of this Agreement, irreparable
harm would occur that monetary damages could not make whole. It is accordingly agreed that (i) Parent, the Company or Assignee (as
such term is defined below), on the one hand, or the Acting Holders, on the other hand, will be entitled, in addition to any other remedy
to which it may be entitled at law or in equity, to specific performance, or other non-monetary equitable relief, to prevent or restrain
breaches or threatened breaches of this Agreement in any action without the posting of a bond or undertaking and (ii) such Parties
will, and hereby do, waive, in any action for specific performance, the defense of adequacy of a remedy at law and any other objections
to specific performance of this Agreement.
31
Section 6.9 Severability.
If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this
Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or unenforceable. The Parties hereto will replace such invalid or
unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such invalid or unenforceable provision; provided, however, that if an excluded or modified
provision materially and adversely affects the rights, immunities, liabilities, duties or obligations of the Rights Agent, the Rights
Agent shall be entitled to resign immediately upon written notice to Parent.
Section 6.10 Assignment.
This Agreement shall not be assignable by any of the Parties (whether by operation of Law or otherwise); provided, however,
that (a) Parent or the Company may assign this Agreement, in whole or in part, to a Person (each such Person, an “Assignee”)
(i) which is a wholly-owned Subsidiary of Parent or the Company (provided, that Parent or the Company, as applicable, remains
jointly and severally liable), (ii) with the prior consent of the Acting Holders, whether evidenced in writing or by a vote taken
at a meeting of the Holders, or (iii) in connection with a transaction involving an Assignment Transaction or a Change in Control
conducted in compliance with Section 4.3 to the extent relating to the applicable Products and the corresponding Milestone,
in each case provided that the applicable Assignee agrees, in an instrument supplemental hereto, executed and delivered to the Rights
Agent, to assume and be bound by all of the terms of this Agreement, and (b) the Rights Agent may assign this Agreement to a successor
Rights Agent appointed in accordance with Section 3.4. Any attempted assignment, transfer or delegation of this Agreement
or any such rights in violation of this Section 6.10 shall be void and of no effect. This Agreement will be binding
upon, inure to the benefit of and be enforceable by Parent’s successors and each Assignee.
Section 6.11 Renunciation
of Rights. Notwithstanding anything to the contrary contained herein, any Holder may at any time agree to renounce, in whole or in
part, whether or not for consideration, such Holder’s rights under this Agreement by written notice to the Rights Agent and Parent,
which notice, if given, shall be irrevocable. Parent may, in its sole discretion, at any time, offer consideration to any Holder, a group
of Holders, or all Holders in exchange for their agreement to irrevocably renounce their rights hereunder. Any CVRs renounced by a Holder
in writing in accordance with the foregoing shall be automatically deemed extinguished and no longer outstanding for purposes of the
definitions of “Acting Holders”, “Aggregate Excess Exercise Price”, “Milestone Payment”
and “Milestone Payment Amount,” Article V and Section 6.3.
Section 6.12 Legal
Holidays. In the event that a Milestone Payment Date does not fall on a Business Day, then (notwithstanding any provision of this
Agreement to the contrary) payment need not be made on such date, but may be made, without the accrual of any additional interest thereon
on account of such Milestone Payment Date not being a Business Day, on the next succeeding Business Day with the same force and effect
as if made on the Milestone Payment Date.
32
Section 6.13 Interpretation;
Construction.
(a) The
table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
(b) The
Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring either Party by virtue of the authorship of any provision of this Agreement.
Section 6.14 Confidentiality.
The Rights Agent, on the one hand, and Parent and the Company, on the other hand, agree that all books, records, information and data
pertaining to the business of the other party, which are exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by a valid
order of a Governmental Body of competent jurisdiction or is otherwise required by Law or regulation.
Section 6.15 Further
Assurances. Parent and the Company hereby each agrees that it will perform, execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement applicable to the Rights Agent’s
obligations.
Section 6.16 Force
Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent will not be liable for any delays or failures
in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, epidemic, pandemic, terrorist
acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power
failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
[Remainder of page intentionally left
blank]
33
IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered by the duly authorized officers of the Parties hereto as of the date first written above.
ESSENCE PARENT INC.
By:
/s/ Justin Bateman
Name: Justin Bateman
Title: President and Secretary
ESPERION THERAPEUTICS, INC.
By:
/s/ Sheldon L. Koenig
Name: Sheldon L. Koenig
Title: President and Chief Executive Officer
COMPUTERSHARE INC. and
COMPUTERSHARE TRUST COMPANY, N.A,
as Rights Agent
On behalf of both entities
By:
/s/ Thomas Borbely
Name: Thomas Borbely
Title: Senior Manager, Corporate Actions
[Signature Page to Contingent Value Rights Agreement]
Annex A
Form of Assignment and Assumption Agreement
ASSIGNMENT
AND ASSUMPTION AGREEMENT, made as of [·]
(this “Agreement”), between [·], a [·] (“Assignor”) and [·], a [·] [·]
(“Assignee”). Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings given
to them in the CVR Agreement referred to below.
W I T N E S S
E T H:
WHEREAS,
Assignor, [·], a [·], and [·], a [·] (the “Rights Agent”), are parties to a Contingent
Value Rights Agreement dated as of [·] (the “CVR Agreement”); and
WHEREAS, Assignor and Assignee
desire to execute and deliver this Agreement evidencing the transfer to Assignee of the due and punctual payment of the Milestone Payment
Amounts, if any, that are not yet paid and may thereafter become payable, and the performance or observance of every covenant of the
CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed and the assumption thereof of Assignee,
in each case to the extent relating to the applicable Products and corresponding Milestone.
NOW, THEREFORE, in consideration
of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor
and Assignee hereby agree as follows:
1. Assignment.
Effective as of [·] (the “Assignment Date”), Assignor hereby assigns to Assignee, and Assignee hereby accepts
the assignment of, the due and punctual payment of the Milestone Payment Amounts, if any, that are not yet paid to the Holders and may
thereafter become payable, and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on
the part of Assignor to be performed and observed, in each case to the extent relating to the applicable Products and corresponding Milestone.
2. Assumption.
Effective as of the Assignment Date, Assignee hereby assumes the due and punctual payment of the Milestone Payment Amounts, if any, that
are not yet paid to the Holders and may thereafter become payable, and the performance or observance of every covenant of the CVR Agreement
not yet performed or observed on the part of Assignor to be performed and observed, in each case to the extent relating to the applicable
Products and corresponding Milestone.
3. Successors
and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto and their respective
successors and assigns.
4. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect
to any laws, rules or provisions that would cause the application of the laws of any jurisdiction other than the State of Delaware.
5. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
A-1
IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.
[ASSIGNOR]
By:
Name:
Title:
[ASSIGNEE]
By:
Name:
Title:
[Signature Page to Assignment and Assumption
Agreement]
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+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration