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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 U
