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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
