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Exhibit 4.5
EXECUTION COPY
AMENDED AND RESTATED VOTING STANDSTILL AGREEMENT
THIS AMENDED AND RESTATED VOTING STANDSTILL AGREEMENT, dated as
of May 21,
2004 (this "Agreement"), is entered into by and among ALTUS
PHARMACEUTICALS
INC., a Delaware corporation (the "Company") (f/k/a "Altus
Biologics Inc."),
VERTEX PHARMACEUTICALS INCORPORATED, a Massachusetts corporation
("Vertex"), and
each of the parties identified on Schedule A hereto
(individually, a "Purchaser"
and, collectively, the "Purchasers"), and amends and restates
that certain
Voting Standstill Agreement among the Company, Vertex and the
other parties
thereto dated September 26, 2001, as amended on December 7, 2001
(the "Prior
Agreement").
WHEREAS, the Company and certain of the Purchasers (the "Series
C
Purchasers") contemporaneously with the execution and delivery
of this
Agreement, entered into a Series C Convertible Preferred Stock
and Warrant
Purchase Agreement dated as of the date hereof (the "Purchase
Agreement") which
provides for the purchase by the Series C Purchasers of shares
of the Company's
Series C Convertible Preferred Stock, $.01 par value per share
(the "Series C
Convertible Preferred Stock") and warrants exercisable for
Series C Convertible
Preferred Stock;
WHEREAS, as an essential condition and inducement to the Series
C
Purchasers to enter into the Purchase Agreement and consummate
the transactions
contemplated thereby, and in consideration therefor, Vertex and
the Company have
agreed to enter into this Agreement;
WHEREAS, as of the date hereof, Vertex is the record and/or
beneficial
owner of 1,000,100 shares of the Company's common stock, $.01
par value per
share (the "Common Stock"), 450,000 shares of the Company's
Redeemable Preferred
Stock, $.01 par value per share (the "Redeemable Preferred
Stock"), 87,500
shares of the Company's Series A Convertible Preferred Stock,
$.01 par value per
share (the "Series A Convertible Preferred Stock, and together
with the Common
Stock and Redeemable Preferred Stock, the "Current Shares"), and
warrants to
purchase an aggregate of 4,500,000 shares of Common Stock (the
"Warrants");
WHEREAS, the parties to the Prior Agreement desire to amend and
restate the
Prior Agreement in its entirety as set forth therein; and
WHEREAS, the undersigned parties represent the necessary voting
power
required to amend the Prior Agreement pursuant to Section 3.3
thereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants
and agreements contained herein and in the Purchase Agreement,
and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby
acknowledged, and intending to be legally bound hereby, the
parties hereto agree
as follows:
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ARTICLE I
VOTING OF SHARES
1.1 AGREEMENT TO VOTE.
(a) For purposes of this Agreement, "Shares" shall mean the
Current
Shares and any shares of the Company's capital stock currently
held by a Vertex
Affiliate (as defined below) or acquired by Vertex or any Vertex
Affiliate after
the date hereof, whether upon the exercise of warrants or
options, by operation
of law or otherwise, and whether as record or beneficial owner.
In the event of
a stock dividend or distribution, or any change in the Company's
capital stock
by reason of any stock dividend or distribution, split-up,
recapitalization,
combination, exchange of shares or the like, the term "Shares"
shall be deemed
to refer to and include the Shares as well as all such stock
dividends and
distributions and any shares into which or for which any or all
of the Shares
may be changed or exchanged. For purposes of this Agreement,
"Vertex Affiliate"
shall mean any person or entity, which controls or is controlled
by, or is under
common control with Vertex. For purposes of this definition,
"control" means the
possession, directly or indirectly, of the power to direct the
management or
policies of a person or entity, whether by ownership of voting
securities, by
contract or otherwise, or the ownership, directly or indirectly,
of more than
fifty percent (50%) of the voting securities or other interest
of a person or
entity.
(b) If, at the time of any meeting (whether annual or special
and
whether or not an adjourned or postponed meeting) of the
stockholders of the
Company, however called, or in connection with any written
consent of
stockholders of the Company, the number of Shares then owned by
Vertex and
Vertex Affiliates exceeds thirty-nine and nine tenths percent
(39.9%) of the
voting power of the Company's capital stock entitled to vote or
consent, Vertex
shall vote or consent (or cause to be voted or consented), that
number of Shares
then owned by Vertex and Vertex Affiliates that exceeds
thirty-nine and nine
tenths percent (39.9%) of the voting power of the capital stock
entitled to vote
at such meeting or consent with respect to any written consent,
in the same
proportion as the votes or consents by holders of voting capital
stock other
than Vertex and the Vertex Affiliates are voted or consented
for, against and
abstained.
(c) If, at the time of any meeting (whether annual or special
and
whether or not an adjourned or postponed meeting) of the holders
of any class or
series of the Company's capital stock, however called, or in
connection with any
written consent of the holders of any class or series of the
Company's capital
stock, the voting power of the Shares then owned by Vertex and
the Vertex
Affiliates exceeds thirty-nine and nine tenths percent (39.9%)
of the voting
power of such series or class entitled to vote or consent,
Vertex shall vote or
consent (or cause to be voted or consented), that number of
Shares then owned by
Vertex and the Vertex Affiliates that exceeds thirty-nine and
nine tenths
percent (39.9%) of the voting power of such class or series
entitled to vote or
consent, in the same proportion as the votes or consents by
holders of such
class or series other than Vertex and the Vertex Affiliates are
voted or
consented for, against and abstained.
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1.2 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be
deemed to vest in any party other than Vertex any direct or
indirect ownership
or incidence of ownership of or with respect to any Shares. All
rights,
ownership and economic benefits of and relating to the Shares
shall remain
vested in and belong to Vertex, and neither the Company nor any
Purchaser shall
have authority to manage, direct, superintend, restrict,
regulate, govern, or
administer any of the policies or operations of Vertex or
exercise any power or
authority to direct Vertex in the voting of any of the Shares,
except as
otherwise provided herein, or in the performance of Vertex's
duties or
responsibilities as stockholders of the Company.
1.3 NO INCONSISTENT AGREEMENTS. Vertex hereby covenants and
agrees that it,
except as contemplated by this Agreement, the Purchase Agreement
and the Amended
and Restated Stockholders' Voting Agreement (the "Stockholders'
Agreement") of
even date herewith among the Company, the Purchasers and certain
stockholders of
the Company (a) has not entered, and shall not enter at any time
while this
Agreement remains in effect, into any voting agreement, voting
trust or similar
agreement with respect to any of the Shares and (b) has not
granted, and shall
not grant at any time while this Agreement remains in effect,
and the Shares are
not otherwise subject to, a proxy or power of attorney with
respect to any of
the Shares which is inconsistent with the obligations of Vertex
pursuant to this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF VERTEX
Vertex hereby represents and warrants to the Company and the
Purchasers as
follows:
2.1 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION.
Vertex has full
power and authority to execute and deliver this Agreement, to
perform such
obligations hereunder and to consummate the transactions
contemplated hereby.
The execution, delivery and performance by Vertex of this
Agreement and the
consummation by it of the transactions contemplated hereby have
been duly and
validly authorized by Vertex and no other actions or proceedings
on the part of
Vertex are necessary to authorize the execution and delivery by
it of this
Agreement and the consummation by it of the transactions
contemplated hereby.
This Agreement has been duly executed and delivered by Vertex,
and constitutes a
valid and binding obligation of Vertex, enforceable against it
in accordance
with its terms.
2.2 CONSENTS AND APPROVALS; NO VIOLATIONS. None of the
execution, delivery
or performance of this Agreement by Vertex nor the consummation
by it of the
transactions contemplated hereby nor compliance by it with any
of the provisions
hereof will (i) require any filing with, or approval of, any
governmental
authority, (ii) result in a violation or breach of, or
constitute (with or
without due notice or lapse of time or both) a default (or give
rise to any
right of termination, amendment, cancellation or acceleration)
under, any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture,
guarantee, other evidence of indebtedness, lease, license,
contract, agreement
or other
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instrument or obligation to which Vertex is a party or by which
it or any of its
properties or assets may be bound or (iii) violate any order or
law applicable
to it or any of its properties or assets.
2.3 SHARES. The Current Shares are owned beneficially and of
record by
Vertex and constitute all of the shares of the Company's capital
stock owned of
record or beneficially by Vertex or any Vertex Affiliate. All of
the Current
Shares are issued and outstanding, and, except for the Warrants,
Vertex does not
own, of record or beneficially, any warrants, options or other
rights to acquire
any shares of capital stock or securities of the Company and has
no interest in
or voting rights with respect to any other securities of the
Company. Vertex has
sole voting power, sole power of disposition, sole power to
issue instructions
with respect to the mat
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