EXHIBIT 2.3
NON-COMPETITION AGREEMENT
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NON-COMPETITION AGREEMENT dated as of September 21, 2000 (this
"Agreement"), by and among Esperion Therapeutics, Inc., a Delaware corporation
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("Esperion"), Esperion Mergerco, Inc., a Delaware corporation, as the surviving
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corporation described herein (the "Company"), and the persons listed on Schedule
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1 hereto (the "Talaria Parties").
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WITNESSETH:
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WHEREAS, Esperion, Esperion Mergerco, Inc., a Delaware corporation
("Mergerco") and Talaria Therapeutics, Inc., a Delaware corporation ("Talaria")
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have entered into an Agreement and Plan of Merger and Reorganization dated as of
the date hereof (the "Merger Agreement") pursuant to which Mergerco will be
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merged with and into Talaria, which, as the surviving corporation of the merger,
will become a wholly-owned subsidiary of Esperion; and
WHEREAS, one of the conditions to Esperion and Mergerco's execution and
delivery of the Merger Agreement is that the Talaria Parties execute and deliver
this Agreement; and
WHEREAS, the purpose of this Agreement is to induce Esperion and Mergerco
to execute and deliver the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereby agree as follows:
1. Non-Competition. Each of the Talaria Parties hereby covenants and
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agrees that, until the fifth anniversary of the Effective Time (as defined in
the Merger Agreement), he, she or it shall not, and shall cause its affiliates
(as defined in the Merger Agreement) to not, directly or indirectly, enter into,
participate in or engage in a business or the solicitation of any business which
is or proposes to be a Competitive Business (as defined below), whether for his,
her or its account, as a principal, partner or joint venturer, as the owner of
an interest in, as a director, officer, employee, agent, salesman, consultant,
lender, guarantor or otherwise, anywhere in the world. As used herein, a
"Competitive Business" is a business that is engaged in the research,
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development, manufacturing, distribution, licensing or sale of technology,
products or services relating to (a) empty unilamellar vesicles composed
substantially of phospholipid, (b) liposomes for the treatment of or indication
of metabolic disease(s), cardiovascular disease(s) or sepsis other than the use
of liposomes solely for diagnostic purposes or for drug delivery of other active
ingredients (rather than where the liposomes are an active ingredient), or (c)
the Product (as defined in the Merger Agreement). For purposes of the foregoing
sentence, the word "empty" shall mean without an essential encapsulated drug or
diagnostic agent.
2. Nonsolicitation. Each of the Talaria Parties hereby covenants and
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agrees that, until the fifth anniversary of the Effective Time, he she or it
shall not, and shall cause his, her or its controlled affiliates to not,
directly or indirectly (a) solicit, or arrange to have any other person or
entity solicit, for any of the Talaria Parties or for others, the services or
employment of any employees or former employees of Esperion, the Company,
Talaria or their respective affiliates; (b) hire, contract for services, retain
or otherwise employ or arrange to have any other person or entity hire, contract
for services, retain or otherwise employ, for any of the Talaria
Parties or for others, the services or employment of any employees or former
employees of Esperion, the Company, Talaria or their respective affiliates;
provided that the Talaria Parties may hire, contract for services, retain or
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otherwise employ (but solely for purposes that do not relate to or involve
vesicles, including, without limitation, large unilamellar vesicles), any person
who, at the time of such hire, contract, retention or employment, has not been
employed by Esperion, the Company, Talaria or their respective affiliates for a
consecutive period of at least eighteen (18) months; or (c) call upon, solicit,
divert, take away or attempt to call upon, solicit, divert or take away, for any
of the Talaria Parties or for others, any existing clients or potential clients,
customers, suppliers, business or accounts of the Esperion, the Company, Talaria
or their respective affiliates.
3. Confidential Information. Each of the Talaria Parties hereby
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covenants and agrees that, until the fifth anniversary of the Effective Time, he
she or it shall not without the prior written consent of Esperion, and shall
cause his, her or its affiliates to not without the prior written consent of
Esperion, directly or indirectly (in each case other than without the prior
written consent of Esperion (a) disclose or divulge any Confidential Information
(as defined below) to any other person or entity; (b) publish, participate in,
fund or otherwise contribute to the publication of any information or material
relating to the Confidential Information or Assets (as defined in the Merger
Agreement) without first providing Esperion with prepublication notice and the
opportunity to review abstracts for at least ten (10) business days and
publications and non-public oral presentation for at least thirty (30) business
days, with the right of Esperion to require a postponement of publication for up
to an additional ninety (90) days in order to enable Esperion to apply for a
patent application or otherwise obtain, maintain or perfect its interest in the
intellectual property that may be included in the proposed publication; or (c)
use any Confidential Information for his, her or its own benefit or to the
detriment of Esperion, the Company or any of their respective affiliates.
Notwithstanding the foregoing, if any Talaria Party is required to disclose or
divulge Confidential Information pursuant to any subpoena or other judicial
process, he, she or it shall provide Esperion with prompt prior notice of such
disclosure so that Esperion may seek to protect the confidential nature of such
Confidential Information, whether by obtaining a protective order with respect
thereto or otherwise. As used herein, "Confidential Information" means any
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confidential or proprietary information of Esperion, the Company or their
respective affiliates, including, without limitation, all business plans,
products, processes, software, know-how, trade secrets, formulas, methods,
models, prototypes, discoveries, inventions, materials, reagents or
improvements; provided, that "Confidential Information" does not include
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information which is public as of the date hereof or becomes public hereafter
other than on account of any action or inaction of any Talaria Party.
4. Enforcement. Each of the Talaria Parties hereby acknowledges and
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agrees that (a) the restrictions contained in this Agreement are essential
hereto; (b) Esperion and Mergerco would not have entered into the Merger
Agreement without the execution and delivery by the Talaria Parties of this
Agreement; and (c) the restrictions contained in this Agreement are reasonable
and do not place any undue hardship on the Talaria Parties. Each of the Talaria
Parties further acknowledges and agrees that Esperion and the Company's remedy
at law for any breach by the Talaria Parties of their obligations under this
Agreement would be inadequate and they agree and consent that temporary and
permanent injunctive relief may be granted in any proceeding which may be
brought to enforce any provisions of this Agreement without the
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necessity of proof of actual damages. With respect to any provisions of this
Agreement which are finally determined by a court of competent jurisdiction to
be unenforceable, such court shall have jurisdiction to reform this Agreement
and such provision so that it is enforceable to the maximum extent permitted by
law, and the parties shall abide by such court's determination. If such
unenforceable provision cannot be reformed, such provision shall be deemed to be
severed from this Agreement, but every other provision of this Agreement shall
remain in full force and effect. If at any time any Talaria Party is in
violation of the provisions of the covenants contained herein, the term of such
covenants shall be extended as to such Talaria Party by the period of time that
such Talaria Party was in violation.
5. Notices. All notices and other communications under this Agreement
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shall be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex or other telegraphic communications equipment of the
sending party, as follows:
If to Esperion or the Company:
Esperion Therapeutics, Inc.
0000 X. Xxxxx Xxxxxx
000 XXX Xxxxx
Xxx Xxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxx, Esq.
with a copy to:
Xxxxx Cummis Radin Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx, Esq.
If to the Talaria Parties:
To their respective addresses set forth on Schedule 1 hereto.
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with a copy to:
Duane, Morris & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx, Esq.
and, in the case of Reverse Transport Licensing and Consulting, Inc. and
Xxxxx X. Xxxxxxxx, with a copy to:
Law Office of Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt (or rejection of delivery) if
delivered by hand or overnight courier service or sent by telex and on the date
five (5) business days after dispatch by certified or registered mail if mailed,
in each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 5 or in accordance with the latest unrevised direction
from such party given in accordance with this Section 5.
6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware.
7. Binding Effect. This Agreement and all action taken hereunder in
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accordance with its terms shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns, heirs, executors,
administrators and legal representatives.
8. Entire Agreement. This Agreement contains the entire agreement among
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the parties hereto with respect to the transactions contemplated hereby and
supersedes all prior agreements and understandings, whether written or oral,
among the parties hereto with respect to the subject matter of this Agreement.
9. Amendments. This Agreement shall not be amended with respect to any
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party hereto without the prior written consent of such party.
10. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original.
11. Consent to Jurisdiction. Each of the parties hereto irrevocably
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submits himself, herself or itself to the exclusive jurisdiction of any state or
federal court in the States of Michigan
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or New York over any suit, action or proceeding brought against him, her or it
by Esperion or the Company and arising out of or relating to this Agreement or
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date first above written.
ESPERION THERAPEUTICS, INC.
By:__________________________________
Name:
Title:
ESPERION MERGERCO, INC.
By:__________________________________
Name:
Title:
TALARIA PARTIES:
____________________________
Xx. Xxx X. Xxxxxxxxx
____________________________
Xx. Xxxxxx X. Xxxxxxxx
____________________________
Xxxxxxx X. Xxxxxx
____________________________
Xx. Xxxxx X. Xxxxxxxx
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Rock Hill Ventures, Inc.
By:___________________________
Reverse Transport Licensing and Consulting, Inc.
By:___________________________
NDA Associates, Inc.
By:___________________________
____________________________
Xxxxxx X. Xxxxxx
____________________________
Xx. Xxxxx X. Xxxxxxxxx
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Schedule 1 - Talaria Parties
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Xx. Xxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxxxxx
Xxxx Xxxxxx, XX 00000
Xx. Xxxxxx X. Xxxxxxxx
000 Xxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxx Xxxx
Xxxxx, XX 00000
HCC Investments, Inc.
c/o Wilmington Securities, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xx. Xxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxx
Xxxxx, XX 00000
Xx. Xxxxx Xxx Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Reverse Transport Licensing and Consulting, Inc.
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Rock Hill Ventures, Inc.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
000 Xxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx, XX 00000
NDA Associates, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
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