EXHIBIT 10.9
THIRD AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the
"AGREEMENT") is made and entered into this 21st day of August, 2001, by and
among MYOGEN, INC., a Delaware corporation (the "COMPANY"), THOSE CERTAIN
HOLDERS OF THE COMPANY'S COMMON STOCK LISTED ON EXHIBIT A hereto (the "KEY
STOCKHOLDERS") and THE PERSONS AND ENTITIES LISTED ON EXHIBIT B hereto (the
"INVESTORS" and, together with the Key Stockholders, the "STOCKHOLDERS"). All
terms not otherwise defined herein shall have the meaning ascribed to them in
that certain Third Amended and Restated Investor Rights Agreement of even date
herewith.
WITNESSETH
WHEREAS, the Key Stockholders are the beneficial owners of an aggregate
of 3,651,013 shares of the Common Stock of the Company;
WHEREAS, the Company sold shares of Series A Preferred Stock (the
"SERIES A STOCK") to certain Investors pursuant to the Series A Preferred Stock
Purchase Agreement dated September 23, 1998;
WHEREAS, the Company sold shares of its Series C Preferred Stock (the
"SERIES C STOCK") to certain Investors pursuant to the Series C Preferred Stock
Purchase Agreement dated November 23, 1999;
WHEREAS, the Company proposes to sell shares of its Series D Preferred
Stock (the "SERIES D STOCK," and together with the Series A Stock and Series C
Stock, the "SENIOR PREFERRED") to certain Investors pursuant to the Series D
Preferred Stock Purchase Agreement (the "PURCHASE AGREEMENT") of even date
herewith (the "FINANCING");
WHEREAS, the Company granted voting rights and certain other rights
pursuant to that certain Second Amended and Restated Shareholders Agreement,
dated November 23, 1999 (the "PRIOR AGREEMENT"); and
WHEREAS, in connection with the consummation of the Financing, the
Company, the Key Stockholders and the Investors have agreed to provide for the
future voting of their shares of the Company's capital stock as set forth below
and the Company and the parties to the Prior Agreement are willing to amend the
right given to them pursuant to the Prior Agreement by replacing such rights in
their entirety with the rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1
ARTICLE 1
VOTING
1.1 COMMON SHARES; INVESTOR SHARES.
(a) The Key Stockholders each agree to hold all shares of
voting capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof, and any and all other
securities of the Company legally or beneficially acquired by each of the Key
Stockholders after the date hereof, (hereinafter collectively referred to as the
"COMMON SHARES") subject to, and to vote the Common Shares in accordance with,
the provisions of this Agreement.
(b) The Investors each agree to hold all shares of voting
capital stock of the Company now owned or hereinafter acquired by them
(including but not limited to all shares of Common Stock issued upon conversion
of the Senior Preferred) registered in their respective names or beneficially
owned by them as of the date hereof (and any and all other securities of the
Company legally or beneficially acquired by each of the Investors after the date
hereof) (hereinafter collectively referred to as the "INVESTOR SHARES") subject
to, and to vote the Investor Shares in accordance with, the provisions of this
Agreement.
1.2 VOTING. From and after the date hereof and until this Agreement is
terminated as specified by Article 2, each Stockholder will vote all of his, her
or its voting securities of the Company (the "STOCKHOLDER SHARES") and take all
other necessary or desirable actions within his, her or its control (whether in
the capacity of stockholder, director, member of the executive committee or
officer of the Company or otherwise), in order to accomplish the following:
(i) Cause the Board to consist of not more than eight
(8) members (except if such increase is approved by the requisite vote of
stockholders of the Company in accordance with Article III, Section
C(2)(b)(viii) of the Company's Restated Certificate of Incorporation in effect
on the date hereof, as may be amended from time to time) with no Board Committee
having all the authority of the Board; and
(ii) If necessary for the election of such
individuals to the Board, vote all of his, her or its Stockholder Shares in
favor of the following persons:
(1) two (2) people (each a "COMMON
DESIGNEE") designated by the Key Stockholders holding a majority of the Common
Shares held by the Key Stockholders, one of whom shall be the chief executive
officer of the Company (the Common Designees shall initially be J. Xxxxxxx
Xxxxxxx and Xxxxxxx Xxxxxxx).
(2) one (1) person (the "SERIES A DESIGNEE")
designated by the Stockholders holding a majority of the Series A Stock (the
Series A Designee shall initially be Xxx Xxxxxxxx).
(3) two (2) people (each a "SERIES C
DESIGNEE") designated by the Stockholders holding a majority of the Series C
Stock (the Series C Designees shall initially be Xxxxxx Xxx Xxxxxx and Xxxxxx X.
Xxxxxxx).
2
(4) three (3) people (each a "SERIES D
DESIGNEE") designated by the Stockholders holding a majority of the Series D
Stock, one of whom shall be nominated by X.X. Xxxxxx Partners (SBIC), LLC or its
affiliates (the "X.X. XXXXXX NOMINEE") and one of whom shall be an experienced
pharmaceutical executive. The X.X. Xxxxxx Nominee shall initially be Xxxxxx
Xxxxxxxx, and the other two Series D Designees shall be selected after the date
of the Financing.
1.3 REMOVAL. No director designated and elected as provided in Section
1.2 may be removed without the written consent of such Stockholders as are
entitled to designate and elect such director under Section 1.2, and any vote
taken to fill any vacancy created by the resignation, removal or death of a
director elected pursuant to Section 1.2 shall also be subject to the provisions
of Section 1.2.
1.4 EXPENSES. The Company agrees to reimburse the designated directors
for all reasonable travel expenses incurred by such directors in connection with
any Board of Directors meetings.
1.5 DRAG-ALONG RIGHTS. In the event that the Board of Directors of the
Company and the holders of a majority of the Stockholder Shares (the "REQUISITE
HOLDERS"), approve an Acquisition or Asset Transfer, as defined in the Company's
Restated Certificate of Incorporation, as in effect on the date hereof (an
"APPROVED Sale"), whether by means of a merger, consolidation, or sale of stock
or assets, or otherwise (each, a "SALE OF THE COMPANY"), all Stockholders shall
consent to and raise no objections against the Approved Sale, and if the
Approved Sale is structured as (i) a merger or consolidation of the Company, or
a sale of all or substantially all of the Company's assets, each Stockholder
shall waive any dissenters' rights, appraisal rights or similar rights in
connection with such merger, consolidation or asset sale or (ii) a sale of the
stock of the Company, each Stockholder shall agree to sell his or its
Stockholder Shares on the terms and conditions approved by the Requisite
Holders; provided that:
(i) such terms do not provide that the Stockholders
would receive less than the amount that would be distributed to such
Stockholders in the event the proceeds of the Sale of the Company were
distributed in accordance with the Company's Restated Certification of
Incorporation;
(ii) if any Stockholder is given an option as to the
form and amount of consideration to be received, all Stockholders will be given
the same option; and
(iii) no Stockholder shall be obligated to make any
out-of-pocket expenditure prior to the consummation of the Approved Sale
(excluding modest expenditures for its or his own postage, copies, etc. and the
fees and expenses of its or his own counsel retained by it), and no Stockholder
shall be obligated to pay more than its, her or his pro rata share (based upon
the number of shares of capital stock held by such Stockholder) of reasonable
expenses incurred in connection with such Approved Sale to the extent such costs
are incurred for the benefit of all Stockholders and are not otherwise paid by
the Company or the acquiring party (costs incurred by or on behalf of a
Stockholder for its or his sole benefit will not be considered costs of the
transaction hereunder).
3
1.6 LEGEND.
(a) Concurrently with the execution of this Agreement, there
shall be imprinted or otherwise placed, on certificates representing the Common
Shares and the Investor Shares the following restrictive legend (the "LEGEND"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A STOCKHOLDERS AGREEMENT WHICH PLACES
CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED
HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL
BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH STOCKHOLDERS
AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO MYOGEN,
INC., AT ITS PRINCIPAL PLACE OF BUSINESS."
(b) The Company agrees that, during the term of this
Agreement, it will not remove, and will not permit to be removed (upon
registration of transfer, reissuance or otherwise), the Legend from any such
certificate and will place or cause to be placed the Legend on any new
certificate issued to represent Common Shares or Investor Shares theretofore
represented by a certificate carrying the Legend.
1.7 SUCCESSORS. Prior to transferring any Common Shares or Investor
Shares to any person the transferring Stockholder will cause the prospective
transferee to execute and deliver to the Company and to the other Stockholders
an agreement similar to this Agreement in form and substance. The provisions of
this Agreement shall be binding upon the successors in interest to any of the
Common Shares or Investor Shares. The Company shall not permit the transfer of
any of the Common Shares or Investor Shares on its books or issue a new
certificate representing any of the Common Shares or Investor Shares unless and
until the person to whom such security is to be transferred shall have executed
a written Agreement, substantially in the form of this Agreement, pursuant to
which such person becomes a party to this Agreement and agrees to be bound by
all the provisions hereof as if such person were a Key Stockholder or Investor,
as applicable.
1.8 OBSERVER. CMEA Life Sciences Fund, L.P. ("CMEA") may have one
representative attend meetings of the Company's Board of Directors in a
non-voting capacity; provided that such CMEA representative signs the Company's
form non-disclosure agreement in the form provided by the Company not to
disclose the matters discussed at such meetings, and that the Company shall have
the right to exclude such representative from a portion of any meeting as the
Company and its counsel reasonably deems necessary to protect the Company's
attorney-client privilege.
4
1.9 OTHER RIGHTS. Except as provided by this Agreement, each Key
Stockholder and Investor shall exercise the full rights of a stockholder of the
Company with respect to the Common Shares and the Investor Shares, respectively.
ARTICLE 2
TERMINATION
2.1 This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which it shall
terminate in its entirety:
(a) the date of the closing of a firm commitment underwritten
public offering of the Company's Common Stock registered under the Securities
Act of 1933, as amended, which results in the Senior Preferred being converted
into Common Stock;
(b) the date of the closing of a merger, reorganization or
consolidation of the Company in which the holders of outstanding voting
securities of the Company immediately prior to such merger, reorganization or
consolidation do not hold a majority of the voting securities of the surviving
entity outstanding immediately after such merger, reorganization or
consolidation other than the Financing;
(c) ten (10) years from the date of this Agreement; or
(d) the date as of which the parties hereto terminate this
Agreement by written consent of a majority in interest of the Investors and a
majority in interest of the Key Stockholders; provided, however, that in the
event at least sixty-five percent (65%) of the outstanding shares of Senior
Preferred voting together as a class (on an as-if converted to Common Stock
basis) exercises the redemption right set forth in Section 5 of the Company's
Restated Certificate of Incorporation dated as of the date hereof, this
Agreement shall terminate on the thirtieth (30th) day after the date of the
Notice described in Section 5 of the Company's Restated Certificate of
Incorporation; provided that this Agreement shall not terminate until the
Company has redeemed at least 65% of the Senior Preferred subject to such
redemption pursuant to the terms of the Restated Certificate of Incorporation.
ARTICLE 3
MISCELLANEOUS
3.1 AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT. All of the
undersigned parties who were parties to the Prior Agreement and who constitute
the requisite parties to amend the Prior Agreement hereby, on behalf of
themselves and all others, agree that the Prior Agreement is null and void and
superseded in all respects by this Agreement.
3.2 OWNERSHIP. Each Key Stockholder represents and warrants to the
Investors that (a) he or it now owns the Common Shares, free and clear of liens
or encumbrances, and has not, prior to or on the date of this Agreement,
executed or delivered any proxy or entered into any other voting agreement or
similar arrangement other than one which has expired or terminated prior to the
date hereof, and (b) such Key Stockholder has full power and capacity to
execute,
5
deliver and perform this Agreement which has been duly executed and delivered
by, and evidences the valid and binding obligation of, such Key Stockholder
enforceable in accordance with its terms.
3.3 FURTHER ACTION. If and whenever the Common Shares are sold, the Key
Stockholders or the personal representative of the Key Stockholders shall do all
things and execute and deliver all documents and make all transfers, and cause
any transferee of the Common Shares to do all things and execute and deliver all
documents, as may be necessary to consummate such sale consistent with this
Agreement.
3.4 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institute any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
3.5 GOVERNING LAW. This Agreement, and the rights of the parties
hereto, shall be governed by and construed in accordance with the laws of the
State of Colorado as such laws apply to agreements among Colorado residents made
and to be performed entirely within the State of Colorado.
3.6 AMENDMENT. No modification, amendment or waiver of any provision of
this Agreement will be effective unless approved in a writing signed by the
Company, of Sixty-Five percent (65%) in interest of the Investors and a majority
in interest of the Key Stockholders; provided, however, that notwithstanding the
foregoing, any provision of Section 1.2(ii)(4) regarding X.X. Xxxxxx Partners
(SBIC), LLC or its affiliates shall not be amended or waived without the written
consent of X.X. Xxxxxx Partners (SBIC), LLC. The failure of any party to enforce
any of the provisions of this Agreement will in no way be construed as a waiver
of such provision and will not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
3.7 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision and this Agreement shall be reformed, construed and enforced
as if such invalid, illegal or unenforceable provision had never been contained
herein.
3.8 SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
6
3.9 ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares or other securities (other than any shares or securities of
another corporation issued to the Company's stockholders pursuant to a plan of
merger) are issued on, or in exchange for, any of the Common Shares or Investor
Shares by reason of any stock dividend, stock split, consolidation of shares,
reclassification or consolidation involving the Company, such shares or
securities shall be deemed to be Common Shares or Investor Shares, as the case
may be, for purposes of this Agreement.
3.10 ADDITIONAL INVESTORS. Notwithstanding anything to the contrary
contained herein, if the Company shall issue additional shares of its Series D
Stock pursuant to the Purchase Agreement, any purchaser of such shares of Series
D Stock may become a party to this Agreement by executing and delivering an
additional counterpart signature page to this Agreement and shall be deemed an
"INVESTOR" and a party hereunder.
3.11 ATTORNEYS' FEES. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party
shall be entitled to all costs and expenses of maintaining such suit or action,
including reasonable attorneys' fees.
3.12 ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representation by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
3.13 NOTICE. Any notice provided for in this Agreement must be in
writing and must be either personally delivered or mailed first class to the
recipient at the address indicated by the Company's records, or at such address
or the attention of such other person as the recipient party has specified by
prior written notice to the sending party.
3.14 RELIANCE. The Stockholders may rely upon written notice from the
group or entity named in subsection 1.2 with respect to the identity of the
person designated by such entity or group to serve on the Board pursuant to
subsection 1.2. Each entity or group entitled to designate a director agrees to
provide such notice in good faith immediately upon request.
3.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT as of the date first above written.
COMPANY: INVESTORS:
MYOGEN, INC. SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
By: /s/ J. Xxxxxxx Xxxxxxx its General Partner
-------------------------------------
J. Xxxxxxx Xxxxxxx
President and Chief Executive Officer By: /s/ Xxx Xxxxxxxx
------------------------------
General Partner
KEY STOCKHOLDERS: SEQUEL EURO LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
/s/ Xxxxxxx X. Xxxxxxx its General Partner
-----------------------------------------
Xxxxxxx X. Xxxxxxx
SAVACOR TRUST By: /s/ Xxx Xxxxxxxx
------------------------------
Manager
By: /s/ Xxxxxxx X. Xxxxxxx CROSSPOINT VENTURE PARTNERS 1997
-----------------------------------------
INVESTOCOR TRUST
By: /s/ Xxx Xxxxxx
------------------------------
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
INTERWEST PARTNERS VI, LP
/s/ Xxxxxxx Xxxxxxx
----------------------------------------- By: /s/ Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx ------------------------------
General Partner
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
INTERWEST INVESTORS VI, LP
/s/ M. Xxxxxxxx Xxxxxxxx
-----------------------------------------
M. Xxxxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------
General Partner
/s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
STOCKHOLDERS AGREEMENT
/s/ J. Xxxxxxx Xxxxxxx
-----------------------------------------
J. Xxxxxxx Xxxxxxx
NEW ENTERPRISE ASSOCIATES 9,
LIMITED PARTNERSHIP
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx By: NEA Partners 9, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
----------------------------------
/s/ Xxxx X. Xxxxxx X. Xxxxxxx Xxxxxxxx
----------------------------------------- General Partner
Xxxx X. Xxxxxx
NEA PRESIDENTS FUND, L.P.
/s/ Xxxxx Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxx Xxxxxx By: NEA General Partners, L.P.
By: /s/ C. Xxxxxxx Xxxxxxxx
----------------------------------
General Partner -
C. Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxx
NEA VENTURES 1999, LIMITED
PARTNERSHIP
/s/ Xxxxxx Xxx Xxxxx
-----------------------------------------
Xxxxxx Xxx Xxxxx By: /s/ Xxxxxxxxxx Xxxxx
------------------------------
Vice President -
Xxxxxxxxxx Xxxxx
/s/ Xxxx X. Xxxxx NEW VENTURE PARTNERS IV L.P.
-----------------------------------------
Xxxx X. Xxxxx
By: /s/
------------------------------
By: /s/
------------------------------
CMEA LIFE SCIENCES FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
General Partner
STOCKHOLDERS AGREEMENT
X.X. XXXXXX PARTNERS (SBIC), LLC
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Its: Managing Director
-----------------------------
NEW ENTERPRISE ASSOCIATES 10,
LIMITED PARTNERSHIP
By: NEA Partners 10, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxxx -
General Partner
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Its: Managing Director
-----------------------------
BVCF IV, L.P.
By: X.X. Xxxx Associates, LLC,
its General Partner
By: Xxxxxxx Venture Management,
LLC, its Attorney-in-fact
By: Xxxxx Street Partners, LLC,
as its Administrative Member
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Partner
INTERWEST PARTNERS VIII, LP
By: InterWest Management Partners
VIII, LLC, its general partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
STOCKHOLDERS AGREEMENT
INTERWEST INVESTORS VIII, LP
By: InterWest Management Partners
VIII, LLC, its general partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
INTERWEST INVESTORS Q VIII, LP
By: InterWest Management Partners
VIII, LLC, its general partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
PACIFIC RIM LIFE SCIENCE NO. 1
INVESTMENT PARTNERSHIP
By: Pacific Rim Life Science
No. 1/2 Investment
Partnership, its general
partner
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxxx, M.D.,
Ph.D., Managing General
Partner
PACIFIC RIM LIFE SCIENCE NO. 2
INVESTMENT PARTNERSHIP
By: Pacific Rim Life Science
No. 1/2 Investment
Partnership, its general
partner
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxxx, M.D.,
Ph.D., Managing General
Partner
HFM CHARITABLE REMAINDER TRUST
By: /s/ Xxx X. Xxxxx
------------------------------
Xxx X. Xxxxx, Authorized Agent
STOCKHOLDERS AGREEMENT
MONTAGU NEWHALL GLOBAL PARTNERS LP
By: /s/ C. Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------
Title: General Partner
---------------------------
/s/ Xxxxx X. Low, Jr.
----------------------------------
Xxxxx X. Low, Jr.
/s/ Xxx X. Xxxxx
----------------------------------
Xxx X. Xxxxx
/s/ Xxxxxxxx XxXxxxxxx
----------------------------------
Xxxxxxxx XxXxxxxxx
/s/ Xxxx Xxxxx
----------------------------------
Xxxx Xxxxx
STOCKHOLDERS AGREEMENT
CHINA DEVELOPMENT INDUSTRIAL
BANK INC.
By: CHINA DEVELOPMENT INDUSTRIAL
BANK INC.
By: /s/ Tai-xxxx Xxx
------------------------------
Tai-xxxx Xxx, Chairman & CEO
STOCKHOLDERS AGREEMENT
PERSEUS-XXXXX BIOPHARMACEUTICAL
FUND, LP
By: Perseus-Xxxxx Partners, LLC,
General Partner
By: SFM Participation, LP,
Member
By: SFM AH, Inc., General
Partner
/s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------
By: Xxxxxxx X. Xxxxxxx, Xx.
Title: Secretary
STOCKHOLDERS AGREEMENT
XXXX VENTURES, L.P.
By: /s/ X. Xxxxxx Xxxxxx III
------------------------------
Name: X. Xxxxxx Xxxxxx, III
----------------------------
Title: Managing Director
SILICON VALLEY BANCVENTURES, L.P.
By: Silicon Valley BancVentures,
Inc., Its General Partner
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Investment Manager
---------------------------
STOCKHOLDERS AGREEMENT
Pacific Rim Capital LLC
/s/ T. Xxxxxxx Xxxx
----------------------------------
T. Xxxxxxx Xxxx, Manager
/s/ Xxxxx Xxxxxxxx, MD
----------------------------------
Xxxxx Xxxxxxxx, MD
XXXXXX X. TOY & XXXXXXXXX X. TOY,
JTWROS
/s/ Xxxxxx X. Toy
----------------------------------
Xxxxxx X. Toy
/s/ Xxxxxxxxx X. Toy
----------------------------------
Xxxxxxxxx X. Toy
/s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxxx
XXXXX-XXXXXX AND ASSOCIATES, LP
By: /s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx, General Partner
/s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
STOCKHOLDERS AGREEMENT
EXHIBIT A
LIST OF KEY STOCKHOLDERS
Xxxxxxx X. Xxxxxxx
Savacor Trust
InvestoCor Trust
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
M. Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx
J. Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxx Xxx Xxxxx
Xxxx X. Xxxxx
EXHIBIT B
LIST OF INVESTORS
Sequel Limited Partnership
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Sequel Euro Limited Partnership
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Crosspoint Venture Partners 1997
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
InterWest Partners VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
InterWest Investors VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
New Enterprise Associates 9, Limited Partnership
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
NEA Presidents Fund, L.P.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
NEA Ventures 1999, Limited Partnership
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
New Venture Partners IV L.P.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
CMEA Life Sciences Fund, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxxx
X.X. Xxxxxx Partners (SBIC), LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
With a copy to:
X.X. Xxxxxx Partners
Official Notices Clerk
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
and
X.X. Xxxxxx Partners (SBIC), LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
New Enterprise Associates 10, Limited Partnership
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
X.X. Xxxxxx Securities Inc.
c/o Xxxxx Xxxx
000 Xxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
BVCF IV, L.P.
x/x Xxxxx Xxxxxx Partners, LLC
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Ph.D.
InterWest Partners VIII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
InterWest Investors VIII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
2
InterWest Investors Q VIII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Pacific Rim Life Science No.1 Investment Partnership
(C/O) Pacific Rim Ventures Co., Ltd.
2nd Floor, Green Plaza
0-0-00 Xxxxxxxx, Xxxxxxxx-xx
Xxxxx 000-0000, Xxxxx
Pacific Rim Life Science No.2 Investment Partnership
(C/O) Pacific Rim Ventures Co., Ltd.
2nd Floor, Green Plaza
0-0-00 Xxxxxxxx, Xxxxxxxx-xx
Xxxxx 000-0000, Xxxxx
Both care of:
Xxxxxxx Xxxxxxxxx, Vice President, Pacific Rim Ventures Co., Ltd.
2nd Floor, Green Plaza
0-0-00 Xxxxxxxx, Xxxxxxxx-xx
Xxxxx 000-0000, Xxxxx
TEL: 00-0-0000-0000
FAX: 00-0-0000-0000
xxx@xxxxxxxxxx-xxxxxxxx.xxx
HFM Charitable Remainder Trust
0000 Xxxxxxxxx Xxxx XX
Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxxx
Montagu Newhall Global Partners LP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx X0X 0XX
Attention: Xxxxxx Xxxxxxx
Xxxxx X. Low, Jr
00 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxx Xxxxx
0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX. 00000
Xxxxxxxx XxXxxxxxx
00 Xxxx 0xx Xx., Xxx. 0
Xxx Xxxx, XX 00000
3
Xxxx Xxxxx
00 Xxxxxxx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
China Development Industrial Bank Inc.
000 Xxxxxx Xxxx Xxxx Section 0
Xxxxxxxx Xxxxxxxx Xxxxxxxxxx
Xxxxxx, 000
Xxxxxx
Attn: Xxxxxx Xxxx, Assistant Manager
Perseus-Xxxxx Biopharmaceutical Fund, LP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxx X. Xxxxxx
with a copy to:
Perseus-Xxxxx Biopharmaceutical Fund, L.P.
c/o Soros Fund Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Xxxx Ventures, L.P.
Xxxxx 0000
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Esq.
Silicon Valley BancVentures L.P.
c/o
Silicon Valley BancVentures, Inc.
Attn: Xxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
4
T. Xxxxxxx Xxxx
c/o Acorn Campus LLC
0 Xxxxxxx Xxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx, MD
0000 Xxxxxxxx Xxxxxx
Xxxxx 000, Xxxxx Xxxxxxxx
Xxxxx Xxxxx, XXX 00000
Xxxxxx X. Toy & Xxxxxxxxx X. Toy, JTWROS
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxx
00 Xxxx Xxxxxx
Xxxxxx Xxxxx, Xx. 00000
Xxxxx-XxXxxx and Associates, LP
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxx and Xxxx XxXxxx
Xxxxxx Xxxxx
00000 Xxxxxxxxx Xx.
Xxxxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxx
Pluris Healthcare Systems
00000 X. Xxxxxx Xx.
Xxxxxx, XX 00000
Xxxxx Xxxxxxx
Panorama Research
0000 Xxxxxxxxx
Xx. Xxxx, XX 00000
5
MYOGEN, INC.
FIRST AMENDMENT TO THE
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Pursuant to Section 3.6 of the Third Amended and Restated Stockholders
Agreement, by and among Myogen, Inc. (the "Company") and the Investors and Key
Stockholders named therein, dated as of August 21, 2001 (the "Agreement"), the
Company and each of the undersigned Investors and Key Stockholders hereby agree,
effective as of this 20th day of December, 2001 to the amendment (the
"Amendment") set forth below. Capitalized terms used but not defined herein have
the meanings given them in the Agreement.
RECITALS
A. In connection with the sale and issuance of additional shares of its
Series D Preferred Stock pursuant to that certain Series D Preferred Stock
Purchase Agreement, dated August 21, 2001, as amended on November 2, 2001, the
Company wishes amend Section 1.2 (ii)(4) of the Agreement to provide that
representative of Perseus Xxxxx as a Series D Designee to its Board of
Directors.
AGREEMENT
The parties to the Agreement hereby agree as follows:
1. Section 1.2(ii)(4) of the Agreement is hereby amended and restated
to read in its entirety as set forth below:
"(4) three (3) people (each a "SERIES D DESIGNEE") designated
by the Stockholders holding a majority of the Series D Stock, one of
whom shall be nominated by X.X. Xxxxxx Partners (SBIC), LLC or its
affiliates (the "X.X. XXXXXX NOMINEE"), one of whom shall be nominated
by Perseus Xxxxx (the "PERSEUS XXXXX NOMINEE") and one of whom shall be
an experienced pharmaceutical executive. The X.X. Xxxxxx Nominee shall
initially be Xxxxxx Xxxxxxxx, the Perseus Xxxxx Nominee shall initially
be Xxxxxx X. Xxxxxx, M.D. and the other Series D Designee shall be
selected after the date of the Financing."
2. This Amendment may be executed in any number of counterparts, each
of which may be executed by less than all of the parties hereto and each of
which shall constitute one and the same instrument.
3. The undersigned Purchasers consent to a restatement of the Agreement
to incorporate this Amendment.
4. This Amendment shall be effective upon its execution by the Company
and the holders of sixty-five percent (65%) in interest of the Investors and a
majority in interest of the Key Stockholders.
5. The Amendment shall be governed and construed in 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.
1
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to the Third Amended and Restated Stockholders Agreement as of the
date set forth in the first paragraph above.
COMPANY: INVESTORS:
MYOGEN, INC. SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
By: /s/ J. Xxxxxxx Xxxxxxx its General Partner
-------------------------------------
J. Xxxxxxx Xxxxxxx
President and Chief Executive Officer By: /s/ Xxx Xxxxxxxx
------------------------------
General Partner
KEY STOCKHOLDERS: SEQUEL EURO LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
/s/ Xxxxxxx X. Xxxxxxx its General Partner
----------------------------------------
Xxxxxxx X. Xxxxxxx
SAVACOR TRUST By: /s/ Xxx Xxxxxxxx
------------------------------
Manager
By: Xxxxxxx X. Xxxxxxx CROSSPOINT VENTURE PARTNERS 1997
------------------------------------
INVESTOCOR TRUST
By: /s/ Xxx Xxxxxx
------------------------------
General Partner
By: Xxxxxxx X. Xxxxxxx
------------------------------------
INTERWEST PARTNERS VI, LP
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------
General Partner
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ M. Xxxxxxxx Xxxxxxxx INTERWEST INVESTORS VI, LP
---------------------------------------
M. Xxxxxxxx Xxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
------------------------------
General Partner
/s/
---------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
FIRST AMENDMENT TO THE MYOGEN, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
/s/ J. Xxxxxxx Xxxxxxx
---------------------------------------
J. Xxxxxxx Xxxxxxx
NEW ENTERPRISE ASSOCIATES 9,
LIMITED PARTNERSHIP
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx By: NEA Partners 9, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
/s/ Xxxx X. Xxxxxx X. Xxxxxxx Xxxxxxxx
--------------------------------------- General Partner
Xxxx X. Xxxxxx
NEA PRESIDENTS FUND, L.P.
/s/ Xxxxx Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxx Xxxxxx By: NEA General Partners, L.P.
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
General Partner -
C. Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx
NEA VENTURES 1999, LIMITED
PARTNERSHIP
/s/ Xxxxxx Xxx Xxxxx
---------------------------------------
Xxxxxx Xxx Xxxxx By: /s/ Xxxxxxxxxx Xxxxx
------------------------------
Vice President -
Xxxxxxxxxx Xxxxx
NEW VENTURE PARTNERS IV L.P.
/s/ Xxxx X. Xxxxx
---------------------------------------
Xxxx X. Xxxxx By:
------------------------------
By:
------------------------------
CMEA LIFE SCIENCES FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
General Partner
FIRST AMENDMENT TO THE MYOGEN, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
2
X.X. XXXXXX PARTNERS (SBIC),
LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Its: Managing Director
-------------------------
NEW ENTERPRISE ASSOCIATES 10,
LIMITED PARTNERSHIP
By: NEA Partners 10, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx,
--------------------------
C. Xxxxxxx Xxxxxxxx, General
Partner
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Its: Managing Director
-------------------------
BVCF IV, L.P.
By: X.X. Xxxx Associates, LLC,
its General Partner
By: Xxxxxxx Venture
Management, LLC, its
Attorney-in-fact
By: Xxxxx Street Partners,
LLC, as its Administrative
Member
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx
Partner
INTERWEST PARTNERS VIII, LP
By: InterWest Management
Partners VIII, LLC, its
general partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------
INTERWEST INVESTORS VIII, LP
By: InterWest Management
Partners VIII, LLC, its
general partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------
FIRST AMENDMENT TO THE MYOGEN, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
3
INTERWEST INVESTORS Q VIII, LP
By: InterWest Management
Partners VIII, LLC, its
general partner
By:
------------------------------
PACIFIC RIM LIFE SCIENCE NO. 1
INVESTMENT PARTNERSHIP
By: Pacific Rim Life Science
No. 1/2 Investment
Partnership, its general
partner
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxxx, M.D.,
Ph.D., Managing General
Partner
PACIFIC RIM LIFE SCIENCE NO. 2
INVESTMENT PARTNERSHIP
By: Pacific Rim Life Science
No. 1/2 Investment
Partnership, its general
partner
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxxx, M.D.,
Ph.D., Managing General
Partner
HFM CHARITABLE REMAINDER TRUST
By:
------------------------------
Xxx X. Xxxxx, Authorized Agent
FIRST AMENDMENT TO THE MYOGEN, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
4
MONTAGU NEWHALL GLOBAL PARTNERS LP
By: /s/ C. Xxxxxx Xxxxxxx
------------------------------
Name: C. Xxxxxx Xxxxxxx
----------------------------
Title: General Partner
---------------------------
----------------------------------
Xxxxx X. Low, Jr.
/s/ Xxx X. Xxxxx
----------------------------------
Xxx X. Xxxxx
----------------------------------
Xxxxxxxx XxXxxxxxx
----------------------------------
Xxxx Xxxxx
CHINA DEVELOPMENT INDUSTRIAL
BANK INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
FIRST AMENDMENT TO THE MYOGEN, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
5
