Item 1.01 Entry into a Material Definitive Agreement.
Registered Direct Offering
On March 19, 2023, Esperion Therapeutics, Inc., a Delaware
corporation (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain
purchasers named therein (the “Purchasers”), pursuant to which the Company agreed to issue and sell, in a registered direct
offering (the “Offering”), 12,205,000 shares of its common stock, par value $0.001 per share (the “Common Stock”), pre-funded warrants
to purchase up to an aggregate of 20,965,747 shares of Common Stock (the “Pre-Funded Warrants”) in lieu of shares
of Common Stock, and warrants to purchase up to 33,170,747 shares of Common Stock (the “Warrants”). The combined purchase
price of each share of Common Stock and accompanying Warrant is $1.675 per share. The purchase price of each Pre-Funded Warrant
and the accompanying Warrant is $1.674 (equal to the combined purchase price per share of Common Stock and accompanying Warrant, minus
$0.001). The Purchase Agreement contains customary representations, warranties, covenants and indemnification rights and obligations of
the Company and the Purchasers. The Offering closed on March 22, 2023.
Pursuant to the Purchase Agreement, the Company is prohibited from
entering into any agreement to issue or announcing the issuance or proposed issuance of any shares of Common Stock or securities convertible
or exercisable into Common Stock, subject to certain exceptions, for a period commencing on March 19, 2023 and expiring 60 days from
the closing date of the Offering. Furthermore, the Company is also prohibited from entering into any agreement to issue Common Stock or
Common Stock Equivalent involving a Variable Rate Transaction (as defined in the Purchase Agreement), subject to certain exceptions, for
a period commencing on March 19, 2023 and expiring 90 days from the closing date of the Offering.
The shares of Common Stock, the Warrants, the Pre-Funded Warrants
and the shares of Common Stock issuable thereunder, were offered by the Company pursuant to a registration statement on Form S-3 (File No. 333-264303), which
was filed with the Securities and Exchange Commission (the “Commission”) on April 15, 2022 and was declared effective
by the Commission on April 26, 2022 (the “Registration Statement”). A copy of the opinion, including the related consent,
of Goodwin Procter LLP relating to the legality of the issuance and sale of the securities in the Offering is attached as Exhibit 5.1
hereto.
Terms of the Warrants and Pre-Funded Warrants
Each Warrant is exercisable for one share of Common Stock at an exercise
price of $1.55 per share. The Warrants are immediately exercisable and will expire 3.5 years from the original issuance date. The Pre-Funded Warrants
were offered in lieu of shares of Common Stock to certain Purchasers whose purchase of shares of Common Stock in the Offering would otherwise
result in the Purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election
of the Purchaser, 9.99%) of the Company’s outstanding Common Stock immediately following the consummation of this Offering. Each Pre-Funded Warrant
is exercisable for one share of Common Stock at an exercise price of $0.001 per share. The Pre-Funded Warrants are immediately
exercisable and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.
A holder (together with its affiliates) may not exercise any portion
of the Warrant to the extent that the holder would own more than 4.99% (or, at the holder’s option upon issuance, 9.99% or 14.99%)
of the Company’s outstanding Common Stock immediately after exercise, as such percentage ownership is determined in accordance with
the terms of the Warrant. A holder (together with its affiliates) may not exercise any portion of the Pre-Funded Warrant, as applicable,
to the extent that the holder would own more than 4.99% (or, at the holder’s option upon issuance, 9.99%) of the Company’s
outstanding Common Stock immediately after exercise, as such percentage ownership is determined in accordance with the terms of the Pre-Funded
Warrant.
In lieu of making the cash payment otherwise contemplated to be made
to the Company upon exercise of a Warrant in payment of the aggregate exercise price, the holder may elect instead to receive upon such
exercise (either in whole or in part) the net number of shares of Common Stock determined according to a formula set forth in the Warrants,
provided that such cashless exercise shall only be permitted if the Registration Statement is not effective at the time of such exercise
or if the prospectus to which the Registration Statement is a part is not available for the issuance of shares of Common Stock to the
Warrant holder. In lieu of making the cash payment otherwise contemplated to be made to the Company upon exercise of a Pre-Funded Warrant
in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the
net number of shares of Common Stock determined according to a formula set forth in the Pre-Funded Warrants.
Warrant Amendment Agreements
In connection with the Offering, the Company amended, pursuant to Warrant
Amendment Agreements (the “Warrant Amendment Agreements”), certain existing warrants to purchase up to an aggregate of 9,024,212
shares of the Company's common stock that were previously issued in December 2021 at an exercise price of $9.00 per share and had
an expiration date of December 7, 2023, effective upon the closing of the Offering, such that the amended warrants have a reduced
exercise price of $1.55 per share and expire three and one half years following the closing of the Offering, for additional consideration
of $0.125 per amended warrant.
The Company received gross proceeds of approximately $55.5 million
from the Offering, before deducting placement agent fees and related offering expenses. The net proceeds to the Company from the Offering,
after deducting the placement agent fees and expenses and the Company’s estimated offering expenses, are expected to be approximately
$51.3 million. In addition, the Company received approximately $1.13 million as the gross consideration in connection with the Warrant
Amendment Agreements.
Placement Agent Compensation
Pursuant to a letter agreement, dated March 16, 2023 (the
“Engagement Letter”), the Company engaged H.C. Wainwright & Co., LLC as its exclusive placement agent (the
“Placement Agent”) in connection with the Offering. The Company agreed to pay to the Placement Agent a cash fee of 7% of
the aggregate gross proceeds raised in the Offering and the gross consideration the Company received in connection with the Warrant Amendment Agreements. In addition, upon any exercise for cash of any Warrants, the Company will pay
the Placement Agent a fee equal to 7.0% of the gross exercise price the Company receives from such exercise, subject to the
Financial Industry Regulatory Authority Rule 5110.
In addition, the Company has also agreed to pay the Placement Agent non-accountable expenses
of $35,000 as well as up to $50,000 for reasonable and documented fees and expenses of legal counsel and other out-of-pocket expenses
and certain of the placement closing costs not to exceed $15,950.
The Company also agreed to pay the Placement Agent a tail fee equal
to the cash compensation in this Offering with respect to any offering of the Company’s equity securities to the extent that such
financing or capital is provided to the Company by investors whom the Placement Agent had correspondence with in connection with this
Offering during the term of its engagement if such financing is consummated during the six-month period following expiration
or termination of its engagement.
The foregoing summaries of the Purchase Agreement, the Warrant Amendment
Agreement, the Warrants, and the Pre-Funded Warrants do not purport to be complete and are subject to, and qualified in their
entirety by, the forms of such documents attached as Exhibits 10.1, 10.2, 4.1, and 4.2, respectively, to this Current Report on Form 8-K, which
are incorporated herein by reference.
The representations, warranties and covenants contained in the Purchase
Agreement were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to the Purchase
Agreement and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Purchase Agreement is incorporated
herein by reference only to provide investors with information regarding the terms of the Purchase Agreement and not to provide investors
with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the
Company’s periodic reports and other filings with the SEC.