Common use of Subsequent Sales of Shares Clause in Contracts

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time on or before the 90th day following the First Closing or at such later time as Xxxxxxx and Intersouth Partners VI, L.P. (“Intersouth VI”) unanimously agree, but in no event later than 300 days from the First Closing, the Company may sell up to $5,000,000 of the Shares at the purchase price set forth in Section 1.2 above to the Additional Purchasers and up to $2,000,000 of the Shares at the purchase price set forth in Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”). Such sale made at an additional closing (the “Additional Closing”) shall be made on the terms and conditions set forth in this Agreement, and (i) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the Additional Closing and the Company shall update the Schedule of Exceptions as of the Additional Closing, and (ii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth in Section 4 hereof shall speak as of the Additional Closing. The Schedule of Purchasers may be amended by the Company without the consent of the Purchasers to include the Additional Purchasers and the shares being purchased by the Additional Purchasers in this Additional Closing upon the execution by the Additional Purchasers of counterpart signature pages hereto. Any shares of Series C Preferred Stock sold pursuant to this Section 2.3 shall be deemed to be “Shares” for all purposes under this Agreement and the Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement.” 2.2 Section 2.4 of the Purchase Agreement shall be deleted in its entirety and the following substituted in lieu thereof:

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time on or before the 90th day following the First Closing or at such later time as Xxxxxxx and Intersouth Partners VIMarch 8, L.P. (“Intersouth VI”) unanimously agree, but in no event later than 300 days from the First Closing2005, the Company may sell up to $5,000,000 the balance of the Shares at the purchase price authorized shares of Exchangeable Preferred Stock authorized for sale as set forth in Section 1.2 2.1 above that are not sold to the Investors at the Initial Closing (the "Additional Purchasers and up Shares") to $2,000,000 not more than three (3) institutional investors (the "Institutional Investors") each Owning more than four percent (4%) of the Shares at Common Stock outstanding on the purchase price set forth date of this Agreement (as certified by such Institutional Investors in Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”writing). Such sale made at an additional closing (the “Additional Closing”) All such sales shall be made on the terms and conditions set forth in this Agreement, and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the Disclosure Schedule) shall speak as of the Additional Initial Closing and the Company shall have no obligation to update the Schedule of Exceptions as of the Additional Closingany such disclosure, and (ii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth Institutional Investors in Section 4 hereof shall speak as of the Additional such Subsequent Closing. Not more than an aggregate of four hundred fifty-two thousand four hundred eighty-nine (452,489) Additional Shares of Exchangeable Preferred Stock may be sold to the Institutional Investors, and no Institutional Investor shall acquire more than the number of shares of Exchangeable Preferred Stock that results in such Institutional Investor Owning the same percentage of the Company's outstanding Common Stock (including, for purposes of this determination, all shares of Common Stock issuable upon exchange of the Exchangeable Preferred Stock) immediately after the Subsequent Closing (assuming, for purposes of this determination, the issuance of all shares of Exchangeable Preferred Stock authorized for sale pursuant to Section 2.1) as such Institutional Investor Owned on the date of this Agreement (as certified by such Institutional Investor in writing). The Schedule of Purchasers signature pages to this Agreement may be amended by the Company without the consent of the Purchasers Investors to include the Additional Purchasers and the shares being purchased by the Additional Purchasers in this Additional Closing any Institutional Investors upon the execution by the Additional Purchasers such Institutional Investors of a counterpart signature pages page hereto. Any shares of Series C Preferred Stock Shares sold pursuant to this Section 2.3 2.5 shall be deemed to be “"Shares” " for all purposes under this Agreement and the Additional Purchasers thereof any Institutional Investors shall be deemed to be “Purchasers” "Investors" for all purposes under this Agreement.” 2.2 Section 2.4 of the Purchase Agreement shall be deleted in its entirety and the following substituted in lieu thereof:

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time on or before January 15, 2002 or at such time as the 90th day following Company and the holders of a majority of the Shares purchased at the First Closing or at such later time as Xxxxxxx and Intersouth Partners VI, L.P. (“Intersouth VI”pursuant to Section 2.1) unanimously may mutually agree, but in no event later than 300 days from the First Closing, the Company may sell up to $5,000,000 the balance of the Shares not sold at the purchase price set forth in Section 1.2 above First Closing to such persons as may be approved by the Additional Purchasers and up to $2,000,000 Board of Directors of the Shares at Company (the purchase price set forth in Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”"ADDITIONAL PURCHASERS"). Such sale All such sales made at an any additional closing closings after December 1, 2001 (the “Additional Closing”each a "SUBSEQUENT CLOSING"), (i) shall be made on the terms and conditions set forth in this Agreement, and (iii) the representations and warranties of the Company set forth in Section 3 hereof (and the Schedule of Exceptions) shall speak as of the Additional Closing and the Company shall update the Schedule date of Exceptions as of the Additional such Subsequent Closing, and (iiiii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth Purchasers in Section 4 hereof shall speak as of such Subsequent Closing and (iv) the conditions of the Additional ClosingPurchasers' obligations at the Subsequent Closing shall be those set forth in Section 5.2 below. The This Agreement, including without limitation, the Schedule of Purchasers Purchasers, may be amended by the Company without the consent of the Purchasers to include the any Additional Purchasers and the shares being purchased by the Additional Purchasers in this Additional Closing upon the execution by the Additional Purchasers of counterpart signature pages heretoPurchasers. Any shares of the Company's Series C D Preferred Stock sold pursuant to this Section 2.3 shall be deemed to be “"Shares” " for all purposes under this Agreement and the any Additional Purchasers thereof shall be deemed to be “"Purchasers” " for all purposes under this Agreement.”. All references to a Second Closing in the Agreement shall hereinafter refer to the Subsequent Closing. " 2.2 Section 2.4 3. This Amendment may be executed in any number of counterparts, each of which may be executed by less than all of the Purchase parties hereto and each of which shall constitute one and the same instrument. 4. The undersigned Purchasers consent to a restatement of the Agreement to incorporate this Amendment. 5. This Amendment shall be deleted in effective upon its entirety execution by the Company and the following substituted holders of a majority of the Shares. 6. The Amendment shall be governed and construed in lieu thereof:accordance with the laws of the State of Colorado as though made solely among residents of the State of Colorado without regard to conflicts of law principals. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] SECOND AMENDMENT TO THE MYOGEN, INC. SERIES D PREFERRED STOCK PURCHASE AGREEMENT

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time on or before the 90th 30th day following the First Initial Closing or at such later time as Xxxxxxx and Intersouth Partners VI, L.P. (“Intersouth VI”) unanimously agree, but in no event later than 300 days from the First ClosingDate, the Company may sell sell, in one or more closings (each a "Subsequent Closing") up to $5,000,000 the balance of the Shares not sold at the Initial Closing to such persons (the "Additional Purchasers") as may be acceptable to the Company. At each Subsequent Closing, (i) each Additional Purchaser shall execute a counterpart signature page hereto whereupon such Additional Purchaser shall become a "Purchaser" hereunder and the Shares purchased by such Additional Purchaser shall be deemed to be "Shares" hereunder, (ii) each Additional Purchaser shall execute a counterpart signature page to the Second Amended and Restated Investor Rights Agreement, dated of even date herewith (the "Investor Rights Agreement"), whereupon such Additional Purchaser shall become an "Investor" and "Holder" thereunder, the shares of Series D Preferred Stock held by such Additional Purchaser shall be deemed to be "Series D Stock" and "Shares" thereunder, and (iii) the Company shall cause Exhibit A to this Agreement and to the Investor Rights Agreement to be amended to reflect the purchase price set forth in Section 1.2 above to made by the Additional Purchasers and up at each Subsequent Closing. Notwithstanding any provision herein to $2,000,000 the contrary, the Company is authorized to effectuate each such Subsequent Closing on the terms described herein without further action or approval on the part of the Shares at the purchase price set forth in Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”)Purchasers. Such sale made at an additional closing (the “Additional Closing”) All such sales shall be made on the terms and conditions set forth in of this Agreement, and (i) the representations and warranties of the Company provided that closing conditions set forth in Section 3 hereof 5.1 shall speak as of the Additional Closing and the Company shall update the Schedule of Exceptions as of the Additional Closing, and (ii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth in Section 4 hereof shall speak as of the Additional not apply to any Subsequent Closing. The Schedule of Purchasers may be amended by the Company without the consent of the Purchasers Initial Closing and each Subsequent Closing are referred to include the Additional Purchasers as a "Closing" and the shares being purchased by the Additional Purchasers in this Additional Initial Closing upon the execution by the Additional Purchasers of counterpart signature pages hereto. Any shares of Series C Preferred Stock sold pursuant Date and each Subsequent Closing Date are referred to this Section 2.3 shall be deemed to be “Shares” for all purposes under this Agreement and the Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreementas a "Closing Date.” 2.2 Section 2.4 of the Purchase Agreement shall be deleted in its entirety and the following substituted in lieu thereof:"

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time on or before the 90th day following the First Closing or at such later time as Xxxxxxx the Company and Intersouth Partners VI, L.P. the holders of a majority of the Shares purchased at the Closing (“Intersouth VI”pursuant to Section 2.1) unanimously may mutually agree, but in no event later than 300 days from the First Closing, the Company may sell up to $5,000,000 the balance of the Shares authorized shares of Series B-1 Preferred Stock not sold at the Closing (the "Remaining Shares") to such persons as may be approved by the Company (the "Additional Purchasers") provided, however, that no such sales of Remaining Shares may be made hereunder unless the Purchasers at the first Closing hereunder (the "Initial Purchasers") are first offered a right to purchase their pro rata portion of the Remaining Shares offered at any such Additional Closing (as defined below). Each Initial Purchaser's "pro rata portion", for the purposes of this Section 2.3 only, shall be equal to the number of shares that such Initial Purchaser actually purchased at the first Closing divided by the total number of Shares sold by the Company to all Initial Purchasers at the first Closing. If the Company proposes to sell Remaining Shares, it shall give each Initial Purchaser written notice of its intention. Each Initial Purchaser shall have ten (10) days from the giving of such notice to agree to purchase up to its pro rata portion of the Remaining Shares on the terms and conditions specified in this Agreement by giving written notice to the Company and stating therein the quantity of Remaining Shares to be purchased and delivering the requisite purchase price set forth in Section 1.2 above to the Additional Purchasers and up to $2,000,000 for such shares. If not all of the Initial Purchasers elect to purchase their entire pro rata portion of the Remaining Shares at then being offered by the purchase price set forth Company, the Company shall have sixty (60) days thereafter to sell any such Remaining Shares to persons selected in the Company's discretion, on the terms and conditions of this Agreement during the ninety (90) day period referenced in the first sentence of this Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”)2.3. Such sale All such sales made at any additional closings (each an additional closing (the “"Additional Closing”"), (i) shall be made on the terms and conditions set forth in this Agreement, and (iii) the representations and warranties of the Company set forth in Section 3 hereof (and the Schedule of Exceptions) shall speak as of the Additional Closing and the Company shall update the Schedule of Exceptions as of the Additional Closing, and (iiiii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth Purchasers in Section 4 hereof shall speak as of the such Additional Closing. The This Agreement, including without limitation, the Schedule of Purchasers Purchasers, may be amended by the Company without the consent of the Purchasers to include the any Additional Purchasers and the shares being purchased by the Additional Purchasers in this Additional Closing upon the execution by the Additional Purchasers of counterpart signature pages heretoPurchasers. Any shares of Series C B-1 Preferred Stock sold pursuant to this Section 2.3 shall be deemed to be “"Shares” for all purposes under this Agreement and the Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement.” 2.2 Section 2.4 of the Purchase Agreement shall be deleted in its entirety and the following substituted in lieu thereof:" for

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time on or before the 90th day following the First Closing or at such later time as Xxxxxxx and Intersouth Partners VIMarch 8, L.P. (“Intersouth VI”) unanimously agree, but in no event later than 300 days from the First Closing2005, the Company may sell up to $5,000,000 the balance of the Shares at the purchase price authorized shares of Exchangeable Preferred Stock authorized for sale as set forth in Section 1.2 2.1 above that are not sold to the Additional Purchasers and up to $2,000,000 of the Shares Investors at the purchase price set forth in Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”). Such sale made at an additional closing Initial Closing (the “Additional ClosingShares”) to not more than three (3) institutional investors (the “Institutional Investors”) each Owning more than three percent (3%) of the Common Stock outstanding on the date of this Agreement (as certified by such Institutional Investors in writing). All such sales shall be made on the terms and conditions set forth in this Agreement, and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the Disclosure Schedule) shall speak as of the Additional Initial Closing and the Company shall have no obligation to update the Schedule of Exceptions as of the Additional Closingany such disclosure, and (ii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth Institutional Investors in Section 4 hereof shall speak as of the Additional such Subsequent Closing. Not more than an aggregate of four hundred fifty-two thousand four hundred eighty-nine (452,489) Additional Shares of Exchangeable Preferred Stock may be sold to the Institutional Investors, and no Institutional Investor shall acquire more than the number of shares of Exchangeable Preferred Stock that results in such Institutional Investor Owning the same percentage of the Company’s outstanding Common Stock (including, for purposes of this determination, all shares of Common Stock issuable upon exchange of the Exchangeable Preferred Stock) immediately after the Subsequent Closing (assuming, for purposes of this determination, the issuance of all shares of Exchangeable Preferred Stock authorized for sale pursuant to Section 2.1) as such Institutional Investor Owned on the date of this Agreement (as certified by such Institutional Investor in writing). The Schedule of Purchasers signature pages to this Agreement may be amended by the Company without the consent of the Purchasers Investors to include the Additional Purchasers and the shares being purchased by the Additional Purchasers in this Additional Closing any Institutional Investors upon the execution by the Additional Purchasers such Institutional Investors of a counterpart signature pages page hereto. Any shares of Series C Preferred Stock Shares sold pursuant to this Section 2.3 2.5 shall be deemed to be “Shares” for all purposes under this Agreement and the Additional Purchasers thereof any Institutional Investors shall be deemed to be “PurchasersInvestors” for all purposes under this Agreement.” 2.2 Section 2.4 of the Purchase Agreement shall be deleted in its entirety and the following substituted in lieu thereof:

Subsequent Sales of Shares. Xxxxxxx Venture Partners, L.L.C. (“Xxxxxxx”) agrees to assist the Company in identifying one or more potential additional purchasers mutually acceptable to the Company and Xxxxxxx (the “Additional Purchasers”). At any time after the 30th day and on or before the 90th day following the First Initial Closing or at such later time as Xxxxxxx the Company and Intersouth Partners VI, L.P. the holders of a majority of the Shares purchased at the Initial Closing and Second Closing (“Intersouth VI”pursuant to Section 2.1 and 2.2) unanimously may mutually agree, but in no event later than 300 days from the First Closing, the Company may sell up to $5,000,000 the balance of the Shares authorized shares of Series C Preferred Stock not sold at the Initial Closing and Second Closing (the "Remaining Shares") to such persons as may be approved by the Company (the "Additional Purchasers") provided, however, that no such sales of Remaining Shares may be made hereunder unless the Purchasers at the Initial Closing and Second Closing hereunder (the "Prior Purchasers") are first offered a right to purchase their pro rata portion of the Remaining Shares offered at any such Additional Closing (as defined below). Each Prior Purchaser's "pro rata portion", for the purposes of this Section 2.3 only, shall be equal to the number of shares that such Prior Purchaser actually purchased at the Initial Closing or Second Closing divided by the total number of Shares sold by the Company to all Prior Purchasers at the Initial Closing and Second Closing. If the Company proposes to sell Remaining Shares, it shall give each Prior Purchaser written notice of its intention. Each Prior Purchaser shall have ten (10) days from the giving of such notice to agree to purchase up to its pro rata portion of the Remaining Shares on the terms and conditions specified in this Agreement by giving written notice to the Company and stating therein the quantity of Remaining Shares to be purchased and delivering the requisite purchase price set forth in Section 1.2 above to the Additional Purchasers and up to $2,000,000 for such shares. If not all of the Prior Purchasers elect to purchase their entire pro rata portion of the Remaining Shares at then being offered by the purchase price set forth Company, the Company shall have sixty (60) days thereafter to sell any such Remaining Shares to persons selected in the Company's discretion, on the terms and conditions of this Agreement during the ninety (90) day period referenced in the first sentence of this Section 1.2 above to Xxxxxxx and to Intersouth VI, Intersouth Partners V, L.P. and Intersouth Affiliates V, L.P. (collectively, “Intersouth”)2.3. Such sale All such sales made at any additional closings (each an additional closing (the “"Additional Closing”", and along with the Initial Closing and Second Closing, each a "Closing"), (i) shall be made on the terms and conditions set forth in this Agreement, and (iii) the representations and warranties of the Company set forth in Section 3 hereof (and the Schedule of Exceptions) shall speak as of the Additional Closing and the Company shall update the Schedule of Exceptions as of the Additional Initial Closing, and (iiiii) the representations and warranties of the Additional Purchasers, Xxxxxxx and Intersouth Purchasers in Section 4 hereof shall speak as of the such Additional Closing. The This Agreement, including without limitation, the Schedule of Purchasers Purchasers, may be amended by the Company without the consent of the Purchasers to include the any Additional Purchasers and the shares being purchased by the Additional Purchasers in this Additional Closing upon the execution by the Additional Purchasers of counterpart signature pages heretoPurchasers. Any shares of Series C Preferred Stock sold pursuant to this Section 2.3 shall be deemed to be “"Shares” " for all purposes under this Agreement and the any Additional Purchasers thereof shall be deemed to be “"Purchasers” " for all purposes under this Agreement.” 2.2 Section 2.4 of the Purchase Agreement shall be deleted in its entirety and the following substituted in lieu thereof: