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Exhibit 4.2
EXECUTION COPY
ALTUS PHARMACEUTICALS INC.
AMENDED AND RESTATED STOCKHOLDERS' VOTING AGREEMENT
This Amended and Restated Stockholders' Voting Agreement (this
"Agreement")
dated as of May 21, 2004 is entered into by and among Altus
Pharmaceuticals
Inc., a Delaware corporation (the "Company") (f/k/a "Altus
Biologics Inc."),
Nomura International plc ("Nomura"), U.S. Venture Partners VIII,
L.P. ("USVP"),
USVP VIII Affiliates Fund, L.P., USVP Entrepreneur Partners Fund
VIII-A, L.P.,
USVP Entrepreneur Partners Fund VIII-B, L.P. (collectively, the
"USVP
Affiliates"), and the other persons and entities listed on
Exhibit A hereto
(each individually, a "Purchaser" and collectively, the
"Purchasers"), and
Vertex Pharmaceuticals Incorporated, a Massachusetts corporation
("Vertex"), and
amends and restates that certain Stockholders' Voting Agreement
among the
Company and the parties thereto, dated as of September 26, 2001,
as amended as
of December 7, 2001 (the "Prior Agreement"). Each of Nomura,
USVP and the USVP
Affiliates is one of the entities listed on Exhibit A and is
therefore included
within the definition of "Purchaser" and "Purchasers." The
Purchasers and Vertex
are sometimes referred to in this Agreement collectively as the
"Stockholders."
Recitals:
1. Vertex owns certain outstanding shares of common stock, $.01
par value
per share, of the Company (the "Common Stock"), warrants to
purchase shares of
Common Stock, shares of Series A Convertible Preferred Stock,
$.01 par value per
share, of the Company (the "Series A Preferred Stock"), and
shares of Redeemable
Preferred Stock, $.01 par value per share, of the Company;
2. Certain of the Purchasers are purchasing, concurrently
herewith, shares
of Series C Convertible Preferred Stock, $.01 par value per
share, of the
Company (the "Series C Preferred Stock") and warrants to
purchase shares of
Series C Preferred Stock pursuant to the Series C Convertible
Preferred Stock
and Warrant Purchase Agreement of even date herewith by and
among the Company
and such Purchasers (the "Purchase Agreement");
3. The Company, Vertex and certain of the Purchasers are parties
to the
Prior Agreement;
4. The undersigned parties represent the necessary voting power
in order to
amend the Prior Agreement as set forth in Section 7(e) thereof;
and
5. The Purchasers and Vertex wish to provide for their
continuing
representation on the Board of Directors of the Company (the
"Board") in the
manner set forth below.
In consideration of the mutual covenants contained herein and
the
consummation of the sale and purchase of shares of capital stock
of the Company
pursuant to the Purchase Agreement, and for other valuable
consideration,
receipt of which is hereby acknowledged, the parties hereto
agree as follows:
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1. Voting of Shares.
(a) In any and all elections of directors of the Company
(whether
at a meeting or by written consent in lieu of a meeting), each
Stockholder
shall vote or cause to be voted all Shares (as defined in
Section 2 below)
owned by him, her or it, or over which he, she or it has voting
control,
and otherwise use his, her or its respective best efforts, so as
to fix the
number of directors of the Company at nine (9) and to elect to
the Board as
directors (i) one (1) member designated by Nomura, (ii) one (1)
member
designated by USVP, (iii) one (1) member designated by Vertex,
(iv) two (2)
members designated by the holders of a majority of the
outstanding shares
of Series C Preferred Stock, (v) the Company's Chief Executive
Officer and
(vi) three (3) members, who shall not be employed by the
Company,
designated by not less than 3 of the Series B Directors and
Series C
Directors (as defined below) (the "Outside Directors"). The
directors
designated by the holders of a majority of the outstanding
shares of Series
C Preferred Stock shall be the Series C Directors (as defined in
the
Company's Third Amended and Restated Certificate of
Incorporation, as
amended (the "Charter")), the directors designated by Nomura and
USVP shall
be the Series B Directors (as defined in the Charter) and the
director
designated by Vertex shall be the Series A Director (as defined
in the
Charter). As of the date hereof, the directors designated by the
holders of
a majority of the outstanding shares of Series C Preferred Stock
shall be
Stewart Hen and Jonathan Leff, the director designated by Nomura
shall be
John Richard, the director designated by USVP shall be Jonathan
Root, the
director designated by Vertex shall be Lynne Brum, the Company's
Chief
Executive Officer is Peter Lanciano, and the three (3) Outside
Directors
shall be Manuel Navia, Richard Aldrich and Michael Wyzga.
(b) In the event that any director designated in the manner
set
forth in Section 1(a) above is unable to serve, or once having
commenced to
serve, is removed or withdraws from the Board (a "Withdrawing
Director"),
such Withdrawing Director's replacement (the "Substitute
Director") will be
designated by the Stockholder or Stockholders or members of the
Board, as
the case may be, with the right to designate the Withdrawing
Director or
Directors being replaced; provided, however, in the case of the
Company's
Chief Executive Officer, the Substitute Director shall be the
successor to
the Company's Chief Executive Officer. Each Stockholder agrees
to take all
action within its respective power, including, but not limited
to, the
voting of all Shares owned by him, her or it, (i) to cause the
election of
such Substitute Director promptly following his or her
nomination pursuant
to this Section 1(b), and (ii) upon the written request of the
Stockholder
or Stockholders or members of the Board, as the case may be,
with the right
to designate a director or directors pursuant to Section 1(a)
above, to
remove, with or without cause, the respective director or
directors
designated by such Stockholder or Stockholders or members of the
Board, as
the case may be.
(c) The Stockholders shall not vote to remove any director
designated pursuant to Section 1(a)(i)-(iv) above without the
consent of
the Stockholder or Stockholders with the right to designate such
director,
except in the case of removal for bad faith or willful
misconduct. No
Stockholders shall vote to remove (i) the Company's Chief
Executive Officer
as director so long as such person holds such position with the
Company or
(ii) any Outside Director without the consent of not less than
three (3) of
the
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Series B Directors and Series C Directors, excluding the
director or
directors subject to removal, except, in both instances, in the
case of
removal for bad faith or willful misconduct.
(d) The Company shall provide a written notice (a
"Designating
Party Notice") to the Stockholders at least 30 days prior to
sending a
notice to stockholders for a meeting at which directors are to
be elected
(an "Election Notice"). A Designating Party Notice shall state
the date
(the "Mailing Date") upon which the respective Election Notice
is to be
mailed to stockholders. The Mailing Date shall be a date that is
at least
15 days after the date the Designation Party Notice is delivered
to the
Stockholders. The holders of a majority of the outstanding
shares of Series
C Preferred Stock, Nomura, USVP, Vertex and the Board shall each
give
written notice to all other parties to this Agreement, no later
than five
(5) days prior to the Mailing Date, of the persons designated
pursuant to
Section 1(a) as nominees for election as directors; provided,
however, so
long as a Stockholder, initially to be Warburg Pincus Private
Equity VIII,
L.P. ("Warburg Pincus") (together with its affiliates), holds a
majority of
the outstanding shares of Series C Preferred Stock, such
Stockholder shall
provide all such notices on behalf of the holders of a majority
of the
outstanding Series C Preferred Stock as may be required by this
Section
1(d). The Company agrees to nominate and recommend for election
as
directors only those individuals designated, or to be
designated, pursuant
to Section 1(a) above. If Nomura, USVP, Vertex or the holders of
a majority
of the outstanding shares of Series C Preferred Stock shall fail
to give
notice to the Company as provided above, the designees of such
Stockholders
who failed to give such notice then serving as directors shall
be deemed
the designees for reelection.
(e) In the event that the member designated by Nomura is
unable
to attend any duly noticed meeting of the Board, the Company
shall allow an
observer designated by Nomura to attend such meeting.
(f) For so long as he serves as an officer of the Company,
Alexey
Margolin shall have the right to receive due notice of all
meetings of the
Board and to attend all such meetings as an observer.
2. Shares. "Shares" shall mean and include any and all shares of
Common
Stock and/or shares of capital stock of the Company, by whatever
name called,
which carry voting rights (including voting rights which arise
by reason of
default or by receipt of a proxy from another shareholder of the
Company) and
shall include any such shares now owned or subsequently acquired
by a
Stockholder, however acquired, including without limitation
stock splits and
stock dividends.
3. Termination.
(a) All rights and obligations of Nomura under this
Agreement
shall terminate on the date on which Nomura no longer holds at
least thirty
percent (30%) of the shares of the Company's Series B
Convertible Preferred
Stock, $.01 par value per share (the "Series B Preferred
Stock"), purchased
by Nomura in accordance with the Series B Convertible Preferred
Stock and
Warrant Purchase Agreement dated September
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26, 2001, by and among the Company and certain Purchasers, as
amended (the
"Series B Purchase Agreement") (subject to appropriate
adjustment for stock
splits, stock dividends, recapitalizations and other similar
events).
(b) All rights and obligations of USVP under this Agreement
shall
terminate on the date on which USVP and the USV
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