EXHIBIT 10.6
MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (the "AGREEMENT") is
entered into as of this 21st day of August, 2001, by and among MYOGEN, INC., a
Delaware corporation (the "COMPANY") and EACH OF THOSE PERSONS AND ENTITIES,
SEVERALLY AND NOT JOINTLY, WHOSE NAMES ARE SET FORTH ON THE SCHEDULE OF
PURCHASERS ATTACHED HERETO AS EXHIBIT A (which persons and entities are
hereinafter collectively referred to as "PURCHASERS" and each individually as a
"PURCHASER").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of up to an
aggregate of forty four million four hundred twenty-one thousand eight hundred
seventeen (44,421,817) shares of its Series D Preferred Stock (the "SHARES");
WHEREAS, Purchasers desire to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to Purchasers
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE
1.1 AUTHORIZATION OF SHARES. On or prior to the First Closing (as
defined in Section 2 below), the Company shall have authorized (i) the sale and
issuance to Purchasers of the Shares having the rights, preferences, privileges
and restrictions set forth in the Restated Certificate of Incorporation of the
Company, as amended, in the form attached hereto as Exhibit B (the "RESTATED
CERTIFICATE") and (ii) the issuance of such shares of Common Stock to be issued
upon the conversion of the Shares (the "CONVERSION SHARES").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, the
Company hereby agrees to issue and sell to each Purchaser and each Purchaser
agrees to purchase from the Company, the number of Shares set forth opposite
such Purchaser's name on Exhibit A at a purchase price of one dollar and
thirty-seven and one-half cents ($1.375) per share.
2. CLOSING, DELIVERY AND PAYMENT
2.1 CLOSING. The closing of the sale and purchase of the Shares under
this Agreement shall take place on the date hereof (the "FIRST CLOSING") and at
a Second Closing, if any, (as defined below, and each of the First Closing and
the Second Closing shall be a "CLOSING") at the offices of Xxxxxx Godward LLP,
000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Colorado
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80021 or at such other time or place as the Company and Purchasers may mutually
agree (each such date is hereinafter referred to as a "CLOSING DATE").
2.2 DELIVERY. At each Closing, subject to the terms and conditions
hereof, the Company will deliver to the Purchasers a certificate representing
the number of Shares to be purchased at the Closing by each Purchaser, against
payment of the purchase price therefor by certified check or wire transfer of
immediately available funds made payable to the Company, in exchange for
services previously rendered or any combination of the foregoing.
2.3 SECOND CLOSING. At any time on or before the 60th day following the
First Closing or at such time as the Company and the holders of a majority of
the Shares purchased at the First Closing (pursuant to Section 2.1) may mutually
agree, the Company may sell the balance of the Shares not sold at the First
Closing to such persons as may be approved by the Board of Directors of the
Company (the "ADDITIONAL PURCHASERS"). Such sales made at the Second Closing,
(i) shall be made on the terms and conditions set forth in this Agreement, (ii)
the representations and warranties of the Company set forth in Section 3 hereof
(and the Schedule of Exceptions) shall speak as of the First Closing and the
Company shall have no obligation to update any such disclosure, (iii) the
representations and warranties of the Additional Purchasers in Section 4 hereof
shall speak as of such Second Closing and (iv) the conditions of the Additional
Purchasers' obligations at the Second Closing shall be those set forth in
Section 5.2 below. This Agreement, including without limitation, the Schedule of
Purchasers, may be amended by the Company without the consent of the Purchasers
to include any Additional Purchasers. Any shares of the Company's Series D
Preferred Stock sold pursuant to this Section 2.3 shall be deemed to be "Shares"
for all purposes under this Agreement and any Additional Purchasers thereof
shall be deemed to be "Purchasers" for all purposes under this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Schedule of Exceptions, the Company hereby
represents and warrants to each Purchaser as of the First Closing as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, the Third Amended and Restated Investor Rights Agreement in the
form attached hereto as Exhibit C (the "INVESTOR RIGHTS AGREEMENT") and the
Third Amended Stockholders Agreement attached hereto as Exhibit D (the
"STOCKHOLDERS AGREEMENT") and the Regulatory Sideletter with X.X. Xxxxxx
Partners (SBIC), LLC in the form attached hereto as Exhibit E (the "REGULATORY
SIDELETTER"), to issue and sell the Shares, the Conversion Shares, upon
conversion thereof, and to carry out the provisions of this Agreement, the
Investor Rights Agreement, the Stockholders Agreement and the Restated
Certificate and to carry on its business as presently conducted and as presently
proposed to be conducted. The Company is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in Colorado and in all
jurisdictions in which the nature of its activities and of its properties (both
owned and leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so would not have a material adverse effect
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on the Company or its business. The Company does not have any subsidiaries and
is not a participant in any joint venture, partnership or similar arrangement.
3.2 CAPITALIZATION; VOTING RIGHTS. The authorized capital stock of the
Company, immediately prior to the First Closing, will consist of eighty-three
million (83,000,000) shares of Common Stock and sixty-five million four hundred
forty-five thousand (65,445,000) shares of Series Preferred. Four million four
hundred sixty-five thousand nine hundred ninety-eight (4,465,998) shares of
Common Stock are issued and outstanding. The Company has reserved twelve million
six hundred seventeen thousand three hundred twenty (12,617,320) shares of
Common Stock for issuance to employees, consultants and other service providers
pursuant to its 1998 Equity Incentive Plan (the "PLAN"). Seven hundred thirty
nine thousand five hundred thirty five (739,535) shares of the issued and
outstanding Common Stock are shares purchased pursuant to restricted stock
agreements under the Plan, and ninety-two thousand three (92,003) shares of the
issued and outstanding Common Stock are shares purchased pursuant to exercises
of options granted under the Plan. There are outstanding options or purchase
rights which have been issued to the Company's employees, consultants and other
service providers pursuant to the Plan to purchase up to one million seven
hundred thirteen thousand seven hundred eighty-four (1,713,784) shares of Common
Stock, and ten million seventy-one thousand nine hundred ninety-eight
(10,071,998) shares of Common Stock are reserved for options or purchase rights
which have not been granted as of the date hereof under the Plan. Six million
thirty-five thousand (6,035,000) shares of Series Preferred are designated
Series A Preferred Stock, six million thirty-five thousand (6,035,000) shares of
which are issued and outstanding. Eight hundred ten thousand (810,000) shares of
Series Preferred are designated Series B Preferred Stock, eight hundred three
thousand six hundred six (803,606) shares of which are issued and outstanding.
Thirteen million one hundred thousand (13,100,000) shares of Series Preferred
are designated Series C Preferred Stock, thirteen million ninety thousand nine
hundred ten (13,090,910) shares of which are issued and outstanding. Forty-five
million five hundred thousand (45,500,000) shares of Series Preferred are
designated Series D Preferred Stock, none of which are issued and outstanding.
All issued and outstanding shares of the Company's Common Stock, Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (i) have
been duly authorized and validly issued to the persons listed on Exhibit F
hereto, (ii) are fully paid and nonassessable, and (iii) were issued in
compliance with all applicable state and federal laws concerning the issuance of
securities. The rights, preferences, privileges and restrictions of the Shares
are as stated in the Restated Certificate. The Conversion Shares have been duly
and validly reserved for issuance. Other than as set forth on Exhibit F, and
except as may be granted pursuant to the Investor Rights Agreement and the
Stockholders Agreement, there are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal), proxy
or shareholder agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities. Except for the Company's
right to repurchase shares of stock from its directors and employees pursuant to
certain restricted stock purchase agreements, agreements entered into pursuant
to the Plan and provisions contained in the Restated Certificate and Investor
Rights Agreement, there are no outstanding rights or obligations of the Company
to repurchase or redeem any of its securities. When issued in compliance with
the provisions of this Agreement and the Certificate, the Shares and the
Conversion Shares will be validly issued, fully paid and nonassessable, and will
be free of any liens or encumbrances; provided, however, that the Shares and the
Conversion Shares may be
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subject to restrictions on transfer under state and/or federal securities laws
as set forth herein or as otherwise required by such laws at the time a transfer
is proposed.
3.3 AUTHORIZATION; BINDING OBLIGATIONS. All corporate actions on the
part of the Company, its officers, directors and stockholders necessary for the
authorization of this Agreement, the Investor Rights Agreement ,the Stockholders
Agreement and the Regulatory Sideletter, the performance of all obligations of
the Company hereunder and thereunder at the Closing and the authorization, sale,
issuance and delivery of the Shares pursuant hereto and the Conversion Shares
pursuant to the Restated Certificate has been taken or will be taken prior to
the Closing. The Agreement, the Investor Rights Agreement, the Stockholders
Agreement and the Regulatory Sideletter, when executed and delivered, will be
valid and binding obligations of the Company enforceable in accordance with
their terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization moratorium or other laws of general application affecting
enforcement of creditors' rights; (ii) general principles of equity that
restrict the availability of equitable remedies; and (iii) to the extent that
the enforceability of the indemnification provisions in Section 2.9 of the
Investor Rights Agreement may be limited by applicable laws. The sale of the
Shares and the subsequent conversion of Shares into Conversion Shares are not
and will not be subject to any preemptive rights or rights of first refusal that
have not been properly waived or complied with.
3.4 FINANCIAL STATEMENTS. The Company has made available to each
Purchaser (a) its unaudited balance sheet as at December 31, 2000 and unaudited
statement of income and cash flows for the twelve (12) months ending December
31, 2000, and (b) its unaudited balance sheet as at June 30, 2001 (the
"Statement Date") and unaudited consolidated statement of income and cash flows
for the six (6) month period ending on the Statement Date (collectively, the
"Financial Statements"), copies of which are attached hereto as Exhibit G. The
Financial Statements, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated, except as disclosed therein, and present fairly the financial
condition and position of the Company as of December 31, 2000 and the Statement
Date; provided, however, that the Financial Statements are subject to normal
recurring year-end audit adjustments (which are not expected to be material),
and do not contain all footnotes required under generally accepted accounting
principles.
3.5 LIABILITIES. The Company has no material liabilities and, to the
best of its knowledge, knows of no material contingent liabilities not disclosed
in the Financial Statements, except current liabilities incurred in the ordinary
course of business subsequent to the Statement Date, which have not been, either
in any individual case or in the aggregate, materially adverse to the financial
condition or operating results of the Company.
3.6 AGREEMENTS; ACTION.
(a) Except for agreements explicitly contemplated hereby and
agreements between the Company and its employees with respect to the sale of the
Company's Common Stock and except as set forth on the Schedule of Exceptions,
there are no agreements, understandings or proposed transactions between the
Company and any of its officers, directors, affiliates or any affiliate thereof.
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(b) Except as set forth on the Schedule of Exceptions, there
are no agreements, understandings, instruments, contracts, proposed
transactions, judgments, orders, writs or decrees to which the Company is a
party or to its knowledge by which it is bound which may involve (i) obligations
(contingent or otherwise) of, or payments to, the Company in excess of $25,000
or (ii) the license of any patent, copyright, trade secret or other proprietary
right to or from the Company (other than licenses arising from the purchase of
"off the shelf" or other standard products), or (iii) provisions restricting or
affecting the development, manufacture, marketing, sale or distribution of the
Company's products or services, or (iv) indemnification by the Company with
respect to infringements of proprietary rights (other than indemnification
obligations arising from purchase or sale agreements entered into in the
ordinary course of business).
(c) Since the date of the Financial Statements, the Company
has not (i) declared or paid any dividends, or authorized or made any
distribution upon or with respect to any class or series of its capital stock,
(ii) incurred any indebtedness for money borrowed or any other liabilities
(other than with respect to dividend obligations, distributions, indebtedness
and other obligations incurred in the ordinary course of business or as
disclosed in the Balance Sheet) individually in excess of $25,000 or, in the
case of indebtedness and/or liabilities individually less than $25,000, in
excess of $50,000 in the aggregate, (iii) made any loans or advances to any
person, other than ordinary advances for travel and business expenses, or (iv)
sold, exchanged or otherwise disposed of any of its assets or rights, other than
the sale of its inventory in the ordinary course of business,
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) Except as set forth on the Schedule of Exceptions, the
Company has not engaged in the past three months in any discussion (i) with any
representative of any corporation or corporations regarding the consolidation or
merger of the Company with or into any such corporation or corporations, (ii)
with any corporation, partnership, association or other business entity or any
individual regarding the sale, conveyance or disposition of all or substantially
all of the assets of the Company, or a transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
Company is disposed of, or (iii) regarding any other form of acquisition,
liquidation, dissolution or winding up of the Company.
3.7 OBLIGATIONS WITH RELATED PARTIES. Except as set forth on the
Schedule of Exceptions, there are no obligations of the Company to owners,
directors, stockholders, or employees of the Company other than (a) for payment
of salary for services rendered, (b) reimbursement for reasonable expenses
incurred on behalf of the Company and (c) for other standard employee benefits
made generally available to all employees (including stock option agreements
outstanding under any stock option plan approved by the Board of Directors of
the Company). None of the officers, directors or stockholders of the Company, or
any members of their immediate families, are indebted to the Company or have any
direct or indirect ownership interest in any firm or corporation with which the
Company is affiliated or with which the
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Company has a business relationship, or any firm or corporation which competes
with the Company (except as a holder of securities of a publicly traded company
to the extent of not more than two percent (2%) of the issued and outstanding
securities of such corporation). No officer, director or stockholder or any
member of their immediate families is, directly or indirectly, interested in any
material contract with the Company. Except as may be disclosed in the Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of
any other person, firm or corporation.
3.8 CHANGES. Since the Statement Date there has not been to the
Company's knowledge:
(a) Any change in the assets, liabilities, financial condition
or operations of the Company from that reflected in the Financial Statements,
other than changes in the ordinary course of business, none of which
individually or in the aggregate has had or is expected to have a material
adverse effect on such assets, liabilities, financial condition or operations of
the Company;
(b) Any resignation or termination of any officers or key
employee of the Company; and the Company does not know of the impending
resignation or termination of employment of any such officer or key employee;
(c) Any material change, except in the ordinary course of
business, in the contingent obligations of the Company by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of the Company;
(e) Any waiver by the Company of a valuable right or of a
material debt owed to it;
(f) Any direct or indirect loans made by the Company to any
stockholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or shareholder;
(h) Any declaration or payment of any dividend or other
distribution of the assets of the Company;
(i) Any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company, except for those immaterial amounts and for current
liabilities incurred in the ordinary course of business;
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(k) Any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(l) Any change in any material agreement to which the Company
is a party or by which it is bound which materially and adversely affects the
business, assets, liabilities, financial condition, operations or prospects of
the Company, including compensation agreements with the Company's employees; or
(m) Any other event or condition of any character that, either
individually or cumulatively, has materially and adversely affected the
business, assets, liabilities, financial condition, operations or prospects of
the Company.
3.9 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company has good
and marketable title to its properties and assets, including the properties and
assets reflected in the Financial Statements and good title to its leasehold
estates, to the Company's knowledge, in each case subject to no mortgage,
pledge, lien, lease, encumbrance or charge, other than (i) those resulting from
taxes which have not yet become delinquent, (ii) minor liens and encumbrances
which do not materially detract from the value of the property subject thereto
or materially impair the operations of the Company, and (iii) those that have
otherwise arisen in the ordinary course of business. All Facilities, machinery,
equipment, fixtures, vehicles and other properties owned, leased or used by the
Company are in good operating condition and repair and are reasonably fit and
usable for the purposes for which they are being used.
3.10 PATENTS AND TRADEMARKS. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information and other proprietary rights and processes
("INTELLECTUAL PROPERTY") necessary for its business as now conducted and as
proposed to be conducted, without any known infringement of the rights of
others. Except as set forth on the Schedule of Exceptions, there are no
outstanding options, licenses or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes of any other person or entity other than such
licenses or agreements arising from the purchase of "off the shelf" or standard
products. Except as set forth on the Schedule of Exceptions, at no time during
the conception or reduction to practice of any of the Company's Intellectual
Property was any developer, inventor or other contributor to such Intellectual
Property operating under any grants from any governmental entity or agency or
private source, performing research sponsored by any governmental entity or
agency or private source or subject to any employment agreement or invention
assignment or nondisclosure agreement or other obligation with any third party
that could adversely affect the Company's rights in such Intellectual Property.
Except as set forth on the Schedule of Exceptions, the Company is not obligated
to make any payments by the way of royalties, fees or otherwise to any owner or
licensor of any patent, trademark, trade name, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of its
business, or otherwise. Except as set forth on the Schedule of Exceptions, the
Company has not granted to any third party any option, license or other right of
any kind to its Intellectual Property. Except as set forth on the Schedule of
Exceptions, the Company does not license any technology from any third party
other than for internal use. The Company has not received any communications
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alleging that the Company has violated or, by conducting its business as
proposed, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
person or entity. The Company is not aware of any violation by a third party of
any of the Company's patents, trademarks, service marks, trade names,
copyrights, trade secrets, information or other proprietary rights and
processes. Except as set forth on the Schedule of Exceptions, the Company is not
aware that any of its officers, employees, consultants, contractors or
stockholders is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere with
their duties to the Company or that would conflict with the Company's business
as proposed to be conducted or that would prevent such officers, employees,
consultants or contractors from assigning inventions to the Company. Neither the
execution nor delivery of this Agreement, nor the carrying on of the Company's
business by the employees or consultants of the Company, nor the conduct of the
Company's business as proposed, will, to the Company's knowledge, conflict with
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any contract, covenant or instrument under which any employee or
consultant is now obligated. The Company does not believe it is or will be
necessary to utilize any inventions, trade secrets or proprietary information of
any of its employees made prior to their employment by the Company, except for
inventions, trade secrets or proprietary information that have been assigned or
licensed to the Company.
3.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation
or default of any term of its Restated Certificate or Bylaws, or of any
provision of any mortgage, indenture, contract, agreement, instrument or
contract to which it is party or by which it is bound or of any judgment,
decree, order, writ or, to its knowledge, any statute, rule or regulation
applicable to the Company which would materially and adversely affect the
business, assets, liabilities, financial condition, operations or prospects of
the Company. The execution, delivery, and performance of and compliance with
this Agreement, the Investor Rights Agreement, the Stockholders Agreement and
the Regulatory Sideletter, and the issuance and sale of the Shares pursuant
hereto and of the Conversion Shares pursuant to the Restated Certificate, will
not result in any such material violation, or be in conflict with or constitute
a default under any such term, or result in the creation of any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or assets of the
Company or the suspension, revocation impairment, forfeiture or nonrenewal of
any permit license, authorization or approval applicable to the Company, its
business or operations or any of its assets or properties or require notice to
or consent of any party to any material agreement to which the Company or its
property is bound.
3.12 LITIGATION. There is no action, suit, proceeding or investigation
pending or to the Company's knowledge currently threatened against the Company
that questions the validity of this Agreement, the Investor Rights Agreement,
the Stockholders Agreement or the Regulatory Sideletter or the right of the
Company to enter into any of such agreements, or to consummate the transactions
contemplated hereby or thereby, or which might result, either individually or in
the aggregate, in any material adverse change in the assets, condition, affairs
or prospects of the Company, financially or otherwise, or any change in the
current equity ownership of the Company, nor is the Company aware that there is
any basis for the foregoing. The foregoing includes, without limitation, actions
pending or threatened (or any basis therefor known to the Company) involving the
prior employment of any of the Company's employees, their use in
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connection with the Company's business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers. The Company is not a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company currently pending or which the
Company intends to initiate.
3.13 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns
and reports (federal, state and local) required to be filed by it. To the
Company's knowledge, there are no material misstatements or omissions of facts
in the tax returns and reports filed by the Company. All taxes shown to be due
and payable on such returns, any assessments imposed, and to the Company's
knowledge all other taxes due and payable by the Company on or before the
Closing have been paid or will be paid prior to the time they become delinquent.
The Company has not been advised (i) that any of its returns, federal, state or
other, have been or are being audited as of the date hereof, or (ii) of any
deficiency in assessment or proposed judgment to its federal, state or other
taxes. The Company has no knowledge of any liability of any tax to be imposed
upon its properties or assets as of the date of this Agreement that is not
adequately provided for. The Company has not elected pursuant to the Internal
Revenue Code of 1986, as amended (the "CODE"), to be treated as a Subchapter S
corporation or a collapsible corporation pursuant to Section 1362(a) or Section
341(f) of the Code, nor has it made any other elections pursuant to the Code
(other than elections that relate solely to methods of accounting, depreciation
or amortization) that would have a material effect on the business, properties
or condition (financial or otherwise) of the Company. The Company has withheld
or collected from each payment made to its employees the amount of all taxes
(including without limitation, federal income taxes, Federal Insurance
Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be
withheld or collected therefrom, and has paid the same to the proper tax
receiving officers or authorized depositories.
3.14 EMPLOYEES. The Company has no collective bargaining agreements
with any of its employees. There is no labor union organizing activity pending
or, to the Company's knowledge, threatened with respect to the Company. No
employee has any agreement or contract, written or verbal, regarding his
employment. To the Company's knowledge, no employee of the Company, nor any
consultant with whom the Company has contracted, is in violation of any term of
any employment contract, patent disclosure agreement or any other agreement
relating to the right of any such individual to be employed by, or to contract
with, the Company because of the nature of the business to be conducted by the
Company; and to the Company's knowledge the continued employment by the Company
of its present employees, and the performance of the Company's contracts with
its independent contractors, will not result in any such violation. The Company
has not received any notice alleging that any such violation has occurred. No
employee of the Company has been granted the right to continued employment by
the Company or to any material compensation following termination of employment
with the Company. The Company is not aware that any officer or key employee, or
that any group of key employees, intends to terminate their employment with the
Company, nor does the Company have a present intention to terminate the
employment of any officer, key employee or group of key employees. Each officer
and key employee is devoting 100% of his or her business time to the conduct of
the business of the Company. The Company does not have any Employee Benefit Plan
as defined in the Employee Retirement Income Security Act of 1974.
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3.15 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each employee,
officer, consultant and contractor of the Company has executed either a
Proprietary Information and Inventions Agreement or a Consulting Agreement
substantially in the forms of Exhibit H-1 and Exhibit H-2 attached hereto. The
Company is not aware that any of its employees, officers, consultants or
contractors is in violation thereof.
3.16 REGISTRATION RIGHTS. Except as required pursuant to the Investor
Rights Agreement and the Series B Preferred Stock Purchase Agreement, dated
March 16, 2000, and those persons and entities identified on Exhibit A thereto,
the Company is presently not under any obligation, and has not granted any
rights, to register (as defined in Section 1.2 of the Investor Rights Agreement)
any of the Company's presently outstanding securities or any of its securities
that may hereafter be issued.
3.17 COMPLIANCE WITH LAWS; PERMITS. To its knowledge, the Company is
not in violation of any applicable statute, rule, regulation, order or
restriction of any domestic or foreign government or any instrumentality or
agency thereof in respect of the conduct of its business or the ownership of its
properties which violation would materially and adversely affect the business,
assets, liabilities, financial condition operations or prospects of the Company.
No governmental orders, permissions, consents, approvals or authorizations are
required to be obtained and no registrations or declarations are required to be
filed in connection with the execution and delivery of this Agreement and the
issuance of the Shares or the Conversion Shares, except such as has been duly
and validly obtained or filed, or with respect to any filings that must be made
after the Closing, which will be filed in a timely manner. The Company has all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business as now being conducted by it, the lack of which could
materially and adversely affect the business, properties, prospects or financial
condition of the Company and believes it can obtain, without undue burden or
expense, any similar authority for the conduct of its business as planned to be
conducted. To the Company's knowledge, it is not in default in any material
respect under any of such franchises, permits, licenses or other similar
authority.
3.18 ENVIRONMENTAL AND SAFETY LAWS. To its knowledge, the Company is
not in violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to its knowledge, no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation. No Hazardous Materials (as defined below) are used
or have been used, stored, or disposed of by the Company or, to the Company's
knowledge after reasonable investigation, by any other person or entity on any
property owned, leased or used by the Company. For the purposes of the preceding
sentence, "HAZARDOUS MATERIALS" shall mean (a) materials which are listed or
otherwise defined as "hazardous" or "toxic" under any applicable local, state,
federal and/or foreign laws and regulations that govern the existence and/or
remedy of contamination on property, the protection of the environment from
contamination, the control of hazardous wastes, or other activities involving
hazardous substances, including building materials or (b) any petroleum products
or nuclear materials.
3.19 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4.2 hereof, the offer, sale
and issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the U.S. Securities Act of 1933, as amended (the
"SECURITIES ACT") and will have been registered or qualified (or are
10
exempt from registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws. Neither the
Company nor any agent on its behalf has solicited or will solicit any offers to
sell or has offered to sell or will offer to sell all or any part of the Shares
to any person or persons so as to bring the sale of such Shares by the Company
within the registration provisions of the Securities Act. No consent, approval,
order or authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental authority
on the part of the Company is required in connection with the offer, sale or
issuance of the Shares (and the Common Stock issuable upon conversion of the
Shares) or the consummation of any other transactions contemplated by this
Agreement, except for (i) filings pursuant to Section 25102(f) of the California
Corporate Securities Law of 1968, as amended, and the rules thereunder, other
applicable state securities laws and Regulation D of the Securities Act, which
filings shall be effected within the requisite time periods, and (ii) the filing
of the Restated Certificate in the office of the Secretary of State of the State
of Delaware which shall be filed by the Company on or prior to the Closing.
3.20 FULL DISCLOSURE. The Company has provided each Purchaser with all
information which such Purchaser has requested for deciding whether to purchase
the Shares and all information which the Company believes is reasonably
necessary to enable the Purchasers to make such decision. This Agreement, the
Exhibits hereto, the Investor Rights Agreement, the Stockholders Agreement and
all other documents delivered by the Company to Purchasers or their attorneys or
agents in connection herewith or therewith or with the transactions contemplated
hereby or thereby, do not contain any untrue statement of a material fact nor,
to the Company's knowledge, omit to state a material fact necessary in order to
make the statements contained herein or therein not misleading. To the Company's
knowledge, there are no facts which (individually or in the aggregate)
materially adversely affect the business, assets, liabilities, financial
condition, prospects or operations of the Company that have not been set forth
in the Agreement, the Exhibits hereto, or in other documents delivered to
Purchasers or their attorneys or agents in connection herewith.
3.21 CORPORATE DOCUMENTS; MINUTE BOOKS. The Certificate and Bylaws of
the Company are in the form previously provided to special counsel to the
Purchasers. The minute books of the Company provided to the Purchaser's legal
counsel contain a complete set of minutes of all meetings of and records of all
actions taken by directors and stockholders since the time of incorporation.
3.22 REAL PROPERTY HOLDING CORPORATION. The Company is not a real
property holding corporation within the meaning of Internal Revenue Code Section
897(c)(2) and any regulations promulgated thereunder.
3.23 MANUFACTURING AND MARKETING RIGHTS. The Company has not granted
rights to manufacture, produce, assemble, license, market or sell its products
to any third party, and is not bound by any agreement that affects the Company's
exclusive right to develop, manufacture, assemble, distribute, market or sell
its products.
3.24 VOTING AGREEMENTS. Except as set forth in the Schedule of
Exceptions, the Stockholders Agreement, the Restated Certificate or the
Investors Rights Agreement, the Company has no agreement, obligation or
commitment with respect to the election of any
11
individual or individuals to the Board of Directors, and to the best of the
Company's knowledge, there is no voting agreement or other arrangement among its
stockholders with respect to the election of any individual or individuals to
the Board of Directors.
3.25 INSURANCE. The Company has in full force and effect fire and
casualty insurance policies and insurance against other hazards, risks and
liabilities to persons and property to the extent and in the manner customary
for companies in similar businesses similarly situated.
3.26 DISTRIBUTIONS. There has been no declaration or payment by the
Company of any dividend, nor any distribution by the Company of any assets of
any kind, to any class or series of its capital stock.
3.27 BROKERS OR FINDERS. No broker or finder is entitled to any
brokerage or other fee from the Company based upon arrangements made by or on
behalf of the Company in connection with the transactions contemplated by this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby represents and warrants to the Company as follows
(such representations and warranties do not lessen or obviate the
representations and warranties of the Company set forth in this Agreement):
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power
and authority under all applicable provisions of law to execute and deliver this
Agreement, the Investor Rights Agreement and the Stockholders Agreement and to
carry out their provisions. All action on Purchaser's part required for the
lawful execution and delivery of this Agreement, the Investor Rights Agreement
and the Stockholders Agreement have been or will be effectively taken prior to
the Closing. Upon their execution and delivery, this Agreement, the Investor
Rights Agreement and the Stockholders Agreement will be valid and binding
obligations of Purchaser, enforceable in accordance with their terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights,
(ii) general principles of equity that restrict the availability of equitable
remedies, and (iii) to the extent that the enforceability of the indemnification
provisions of Section 2.9 of the Investor Rights Agreement may be limited by
applicable laws.
4.2 INVESTMENT REPRESENTATIONS. Purchaser understands that neither the
Shares nor the Conversion Shares have been registered under the Securities Act.
Purchaser also understands that the Shares are being offered and sold pursuant
to an exemption from registration contained in the Securities Act based in part
upon Purchaser's representations contained in the Agreement. Purchaser hereby
represents and warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares (or the Conversion Shares) are
registered pursuant to the Securities Act, or an exemption from registration is
available. Purchaser
12
understands that the Company has no present intention of registering the Shares,
the Conversion Shares or any shares of its Common Stock. Purchaser also
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow Purchaser to transfer all or any portion of the Shares
or the Conversion Shares under the circumstances, in the amounts or at the times
Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Shares and the Conversion Shares for Purchaser's own account for investment
only, and not with a view towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement, the Investor Rights Agreement and
the Stockholders Agreement. Further, Purchaser is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(d) ACCREDITED INVESTOR. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(e) COMPANY INFORMATION. Purchaser has received and read the
Financial Statements and has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations and facilities. Purchaser has also had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
(f) RULE 144. Purchaser acknowledges and agrees that the
Shares, and, if issued, the Conversion Shares must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available. Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the
availability of certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, the sale being through an unsolicited brokers transaction
or in transactions directly with a market maker (as defined under the Securities
Exchange Act of 1934, as amended) and the number of shares being sold during any
three-month period not exceeding specified limitations.
4.3 TRANSFER RESTRICTIONS. Each Purchaser acknowledges and agrees that
the Shares and, if issued, the Conversion Shares, are subject to restrictions on
transfer as set forth in the Investor Rights Agreement.
13
5. CONDITIONS TO CLOSING
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE FIRST CLOSING.
Purchasers' obligations to purchase the Shares at the First Closing are subject
to the satisfaction, at or prior to the First Closing, of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Sections
3 and 6.13 hereof shall be true and correct in all material respects as of the
First Closing Date with the same force and effect as if they had been made as of
such First Closing Date, and the Company shall have performed and complied with
all agreements and conditions herein required to be performed or complied with
by it on or before the First Closing.
(b) LEGAL INVESTMENT. On the First Closing Date, the sale and
issuance of the Shares and the proposed issuance of the Conversion Shares shall
be legally permitted by all laws and regulations to which Purchasers and the
Company are subject.
(c) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investor
Rights Agreement and the Stockholders Agreement (except for such as may be
properly obtained subsequent to the First Closing).
(d) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the Company as
Purchasers shall reasonably request.
(e) COMPLIANCE CERTIFICATE. The Company shall have delivered
to Purchasers a Compliance Certificate, executed by the President of the
Company, dated the date of the First Closing, to the effect that the conditions
specified in subsections (a) through (l) of this Section 5.1 have been
satisfied. The Company shall have delivered to Purchasers a Secretary's
Certificate, executed by the Secretary of the Company, dated as of the First
Closing Date, in form and substance reasonably satisfactory to Purchasers.
(f) RESERVATION OF CONVERSION SHARES. The Conversion Shares
issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(g) INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement
shall have been executed and delivered by the parties thereto.
(h) STOCKHOLDERS AGREEMENT. The Stockholders Agreement shall
have been executed and delivered by the parties thereto.
(i) BOARD OF DIRECTORS. Upon the First Closing, the authorized
size of the Board of Directors of the Company shall be eight (8) members as set
forth in the Stockholders Agreement, and Xxxxxx Xxxxxxxx shall have been
appointed by the Board of Directors effective upon the First Closing.
14
(j) RESTATED CERTIFICATE. The Company shall have filed with
the Secretary of State of the State of Delaware the Restated Certificate, which
shall continue to be in full force and effect as of the First Closing Date.
(k) LEGAL OPINION. The Purchasers shall have received from
legal counsel to the Company an opinion addressed to them, dated as of the First
Closing, in substantially the form attached hereto as Exhibit I.
(l) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the First
Closing hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the Purchasers and
their special counsel and the Purchasers and their special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as they may reasonably request.
(m) DUE DILIGENCE. The Purchasers shall (i) have completed
their due diligence of the Company, and (ii) be satisfied, in their sole
discretion, with the results of such due diligence review.
(o) REGULATORY SIDELETTER. The Company shall have executed and
delivered to X.X. Xxxxxx Partners (SBIC), LLC the Regulatory Sideletter.
(p) SBA FORMS. The Company shall have delivered such
information and executed any documents or other instruments necessary for the
completion and filing of SBA Forms 480, 652 and 1031 and, to the extent
applicable, a Control Certification, no less than forty-eight (48) hours prior
to the First Closing.
(q) MINIMUM CLOSING AMOUNT. The aggregate purchase price to be
received by the Company at the First Closing shall be at least fifty million
dollars ($50,000,000).
5.2 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE SECOND CLOSING.
Purchasers' obligations to purchase the Shares at the Second Closing are subject
to the satisfaction, at or prior to the Second Closing, of the following
conditions:
(a) LEGAL INVESTMENT. On the Second Closing Date, the sale and
issuance of the Shares and the proposed issuance of the Conversion Shares shall
be legally permitted by all laws and regulations to which Purchasers and the
Company are subject.
(b) COMPLIANCE CERTIFICATE. The Company shall have delivered
to Purchasers a Compliance Certificate, executed by the President of the
Company, dated the date of the Second Closing, to the effect that the conditions
specified in subsections (a) through (d) of this Section 5.2 have been
satisfied.
(c) LEGAL OPINION. The Purchasers shall have received from
legal counsel to the Company an opinion addressed to them, dated as of the
Second Closing, in substantially the form attached hereto as Exhibit I except
for such changes as may be required to update such opinion to the facts
concerning the Company or changes to applicable law which may occur prior to the
Second Closing.
15
(d) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Second
Closing hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the Purchasers and
their special counsel and the Purchasers and their special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as they may reasonably request.
5.3 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation
to issue and sell the Shares at each Closing is subject to the satisfaction, on
or prior to such Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties made by Purchasers in Sections 4 and 6.13 hereof shall be true
and correct in all material respects at the date of each Closing, with the same
force and effect as if they had been made on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchasers shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by Purchasers on or before the Closing.
(c) INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement
shall have been executed and delivered by the Purchasers.
(d) STOCKHOLDERS AGREEMENT. The Stockholders Agreement shall
have been executed and delivered by the Purchasers
(e) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investor
Rights Agreement and the Stockholders Agreement (except for such as may be
properly obtained subsequent to the Closing).
6. MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Colorado as such laws are applied to agreements between
Colorado residents entered into and performed entirely in Colorado.
6.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive the execution and delivery of this Agreement, any
investigation made by any Purchaser and each Closing. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company or the Purchasers pursuant hereto in connection with
the transactions contemplated hereby shall be deemed to be representations and
warranties by the Company or the Purchasers (as the case may be) hereunder
solely as of the date of such certificate or instrument.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs,
16
executors and administrators of the parties hereto and shall inure to the
benefit of and be enforceable by each person who shall be a holder of the Shares
from time to time.
6.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, the Investor Rights Agreement and the Stockholders Agreement and the
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically set
forth herein and therein.
6.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
6.6 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and holders of a majority of the Shares sold
pursuant to this Agreement (treated as if converted and including any Shares
issued upon the conversion of the Shares into Common Stock that have been
converted that have not been sold to the public).
(b) The obligations of the Company and the rights of the
holders of the Shares and the Conversion Shares under the Agreement may be
waived only with the written consent of the holders of a majority of the Shares
sold pursuant to this Agreement (treated as if converted and including any
Shares issued upon the conversion of the Shares into Common Stock that have not
been sold to the public).
6.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Investor
Rights Agreement and the Stockholders Agreement or the Restated Certificate,
shall impair any such right, power or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of or in any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character on any Purchaser's part of any breach, default or
noncompliance under this Agreement or under the Restated Certificate or any
waiver on such party's part of any provisions or conditions of the Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement, the Restated
Certificate, by-law, or otherwise afforded to any party, shall be cumulative and
not alternative.
6.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, or if not, then on the next business
day; (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
Company at the address as set forth on the signature
17
page hereof and to Purchaser at the address set forth on Exhibit A attached
hereto or at such other address as the Company or Purchaser may designate by ten
(10) days advance written notice to the other parties hereto.
6.9 EXPENSES. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement. The Company shall, at the First Closing, reimburse the reasonable
fees and expenses, not to exceed $50,000 in the aggregate, of Xxxxxx & Xxxxxxx,
special counsel for the Purchasers, Knobbe, Martens, Xxxxx & Bear LLP, special
intellectual property counsel to the Purchasers, and consultants to the
Purchasers incurred in connection with the negotiation, execution, delivery and
performance of this Agreement.
6.10 ATTORNEYS' FEES. In the event that any dispute among the parties
to this Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
6.11 TITLES AND SUBTITLES. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.13 BROKER'S FEES. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto, other than X.X. Xxxxxx Securities Inc., is
or will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated herein.
Each party hereto further agrees to indemnify each other party for any claims,
losses or expenses incurred by such other party as a result of the
representation in this Section 6.13 being untrue.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
18
IN WITNESS WHEREOF, the parties hereto have executed this SERIES D
PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY INVESTORS:
MYOGEN, INC. X.X. XXXXXX PARTNERS (SBIC), LLC
By: /s/ J. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------- ------------------------------
J. Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
President ----------------------------
Title: Managing Director
---------------------------
NEW ENTERPRISE ASSOCIATES 10,
LIMITED PARTNERSHIP
By: NEA Partners 10, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxxx - General
Partner
SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
its General Partner
By: /s/ Xxx Xxxxxxxx
------------------------------
Manager
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
------------------------------
STOCK PURCHASE AGREEMENT
INTERWEST INVESTORS Q VIII, LP
By: InterWest Management Partners
VIII, LLC, its general partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
NEW ENTERPRISE ASSOCIATES 9,
LIMITED PARTNERSHIP
By: NEA Partners 9, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxxx -
General Partner
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx X. Zanse
------------------------------
Name: Xxxxx X. Zanse
----------------------------
Title: 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
STOCK PURCHASE AGREEMENT
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
CMEA LIFE SCIENCES FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
General Partner
HFM CHARITABLE REMAINDER TRUST
By: /s/ Xxx X. Xxxxx
------------------------------
Xxx X. Xxxxx, Authorized Agent
MONTAGU NEWHALL GLOBAL PARTNERS LP
By: /s/ C. Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------
Title: General Partner
---------------------------
STOCK PURCHASE AGREEMENT
/s/ Xxxxx X. Low, Jr.
----------------------------------
Xxxxx X. Low, Jr.
/s/ Xxx X. Zanse
----------------------------------
Xxx X. Xxxxx
/s/ Xxxxxxxx XxXxxxxxx
----------------------------------
Xxxxxxxx XxXxxxxxx
/s/ Xxxx Xxxxx
----------------------------------
Xxxx Xxxxx
STOCK PURCHASE AGREEMENT
CHINA DEVELOPMENT INDUSTRIAL
BANK INC.
By: /s/ Tai-xxxx Xxx
------------------------------
Name: Tai-xxxx Xxx
----------------------------
Title: Chairman and CEO
---------------------------
STOCK PURCHASE 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
STOCK PURCHASE AGREEMENT
XXXX VENTURES, L.P.
By: /s/ 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
---------------------------
STOCK PURCHASE AGREEMENT
PACIFIC CAPITAL, LLC
/s/ T. Xxxxxxx Xxxx
------------------------------
T. Xxxxxxx Xxxx
/s/ Xxxxx Xxxxxxxx
------------------------------
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
STOCK PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
FIRST CLOSING
NAME AND ADDRESS SHARES PRICE
---------------- ------ -----
X.X. Xxxxxx Partners (SBIC), LLC 14,545,454 $19,999,999.25
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 7,272,728 $10,000,001.00
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Sequel Limited Partnership 290,909 $399,999.87
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
InterWest Partners VIII, L.P. 5,262,000 $7,235,250.00
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
InterWest Investors VIII, L.P. 42,000 $57,750.00
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
NAME AND ADDRESS SHARES PRICE
---------------- ------ -----
InterWest Investors Q VIII, L.P. 150,546 $207,000.75
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
New Enterprise Associates 9, Limited Partnership 6,181,819 $8,500,001.13
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
*X.X. Xxxxxx Securities Inc. 675,608
c/o Xxxxx Xxxx
000 Xxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
BVCF IV, L.P. 2,181,819 $3,000,001.13
x/x Xxxx Xxxxxx Partners, LLC
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Ph.D.
CMEA Life Sciences Fund, L.P. 363,637 $500,000.87
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxxx
Pacific Rim Life Science No.1 Investment 484,849 $666,667.37
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 242,424 $333,333.00
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
A-2
NAME AND ADDRESS SHARES PRICE
---------------- ------ -----
HFM Charitable Remainder Trust 727,273 $1,000,000.30
0000 Xxxxxxxxx Xxxx XX
Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxxx
Montagu Newhall Global Partners LP 363,637 $500,000.87
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx X0X 0XX
Attention: Xxxxxx Xxxxxxx
Xxxxx X. Low, Jr 18,182 $25,000.25
00 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxx Xxxxx 7,273 $10,000.38
0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX. 00000
Xxxxxxxx XxXxxxxxx 5,819 $8,001.13
00 Xxxx 0xx Xx., Xxx. 0
Xxx Xxxx, XX 00000
Xxxx Xxxxx 3,636 $4,999.50
00 Xxxxxxx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
TOTAL: 38,819,613 $52,448,006.80
*Shares issued in exchange for past services.
SECOND CLOSING - NOVEMBER 2, 2001
NAME AND ADDRESS SHARES PRICE
---------------- ------ -----
China Development Industrial Bank Inc. 2,181,818 $2,999,999.75
000 Xxxxxx Xxxx Xxxx Section 0
Xxxxxxxx Xxxxxxxx Xxxxxxxxxx
Xxxxxx, 000
Xxxxxx
Attn: Xxxxxx Xxxx, Assistant Manager
A-3
THIRD CLOSING - DECEMBER 27, 2001
NAME AND ADDRESS SHARES PRICE
---------------- ------ -----
Perseus-Xxxxx Biopharmaceutical Fund, LP 5,818,181 $7,999,998.87
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. 1,453,818 $1,998,999.75
Xxxxx 0000
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Esq.
Silicon Valley BancVentures L.P. 545,454 $749,999.25
c/o
Silicon Valley BancVentures, Inc.
Attn: Xxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Pacific Rim Capital, LLC 36,363 $49,999.12
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: T. Xxxxxxx Xxxx
Xxxxx Xxxxxxxx, MD 36,363 $49,999.12
0000 Xxxxxxxx Xxxxxx
Xxxxx 000, Xxxxx Xxxxxxxx
Xxxxx Xxxxx, XX 00000
Xxxxxx X. Toy & Xxxxxxxxx X. Toy, JTWROS 18,181 $24,998.87
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
A-4
NAME AND ADDRESS SHARES PRICE
---------------- ------ -----
Xxxxxx X. Xxxxxxxxxx 18,181 $24,998.87
00 Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Xxxxx-XxXxxx and Associates, LP 18,181 $24,998.87
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxx and Xxxx XxXxxx
Xxxxxx Xxxxx 18,181 $24,998.87
00000 Xxxxxxxxx Xx.
Xxxxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxx 18,181 $24,998.87
Pluris Healthcare Systems
00000 X. Xxxxxx Xx.
Xxxxxx, XX 00000
Xxxxx Xxxxxxx 18,181 $24,998.87
Panorama Research
0000 Xxxxxxxxx
Xx. Xxxx, XX 00000
TOTAL: 7,999,265 $10,998,989.33
A-5
EXHIBIT B
RESTATED CERTIFICATE
[INTENTIONALLY OMITTED]
EXHIBIT C
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Filed separately as Exhibit 10.8 to the Company's Registration
Statement on Form S-1.
EXHIBIT D
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Filed separately as Exhibit 10.9 to the Company's Registration
Statement on Form S-1.
MYOGEN, INC.
FIRST AMENDMENT TO THE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
Pursuant to Section 6.6 of the
Series D Preferred Stock Purchase
Agreement, by and among Myogen, Inc. (the "Company") and the Purchasers listed
on Exhibit A thereto, dated as of August 21, 2001 (the "Agreement"), the Company
and each of the undersigned Purchasers hereby agree, effective as of this 26th
day of October, 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. The Company wishes to extend the period in which the Company may
sell the additional shares of Series D Preferred Stock pursuant to the Agreement
until December 31, 2001.
AGREEMENT
The parties to the Agreement hereby agree as follows:
1. Section 2.3 of the Agreement is hereby amended and restated to read
in its entirety as set forth below:
"2.3 SUBSEQUENT SALES OF SHARES. At any time on or before
December 31, 2001 or at such time as the Company and the holders of a
majority of the Shares purchased at the First Closing (pursuant to
Section 2.1) may mutually agree, the Company may sell the balance of
the Shares not sold at the First Closing to such persons as may be
approved by the Board of Directors of the Company (the "ADDITIONAL
PURCHASERS"). All such sales made at any additional closings (each a
"SUBSEQUENT CLOSING"), (i) shall be made on the terms and conditions
set forth in this Agreement, (ii) the representations and warranties of
the Company set forth in Section 3 hereof (and the Schedule of
Exceptions) shall speak as of the First Closing and the Company shall
have no obligation to update any such disclosure, (iii) the
representations and warranties of the Additional Purchasers in Section
4 hereof shall speak as of such Subsequent Closing and (iv) the
conditions of the Additional Purchasers' obligations at the Subsequent
Closing shall be those set forth in Section 5.2 below. This Agreement,
including without limitation, the Schedule of Purchasers, may be
amended by the Company without the consent of the Purchasers to include
any Additional Purchasers. Any shares of the Company's Series D
Preferred Stock sold pursuant to this Section 2.3 shall be deemed to be
"Shares" for all purposes under this Agreement and 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. 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 a majority of the Shares.
1
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.
FIRST AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
2
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to the
Series D Preferred Stock Purchase Agreement as of the date set
forth in the first paragraph above.
COMPANY INVESTORS:
MYOGEN, INC. X.X. XXXXXX PARTNERS (SBIC), LLC
By: /s/ J. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------- ------------------------------
J. Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
President Title: Managing Director
NEW ENTERPRISE ASSOCIATES 10,
LIMITED PARTNERSHIP
By: NEA Partners 10, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxxx, General
Partner
SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
Its General Partner
By: /s/ Xxx Xxxxxxxx
------------------------------
Manager
INTERWEST PARTNERS VIII, LP
By: InterWest Management Partners
VIII, LLC its general partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
INTERWEST INVESTORS VII, 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
------------------------------
FIRST AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
NEW ENTERPRISE ASSOCIATES 9,
LIMITED PARTNERSHIP
By: NEA Partners 9, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxxx,
General Partner
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: 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
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
FIRST AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
2
CMEA LIFE SCIENCES FUND, L.P.
By:
------------------------------
General Partner
HFM CHARITABLE REMAINDER TRUST
By: /s/ Xxx X. Xxxxx
------------------------------
Xxx X. Xxxxx, Authorized Agent
MONTAGU NEWHALL GLOBAL PARTNERS LP
By: /s/ C. Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------
Title: General Partner
---------------------------
----------------------------------
Xxxxx X. Low, Jr.
/s/ Xxxxx X. Zanse
----------------------------------
Xxx X. Xxxxx
----------------------------------
Xxxxxxxx XxXxxxxxx
/s/ Xxxx Xxxxx
----------------------------------
Xxxx Xxxxx
FIRST AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
3
MYOGEN, INC.
SECOND AMENDMENT TO THE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
Pursuant to Section 6.6 of the Series D Preferred Stock Purchase
Agreement, by and among Myogen, Inc. (the "Company") and the Purchasers listed
on Exhibit A thereto, dated as of August 21, 2001, as amended on October 26,
2001 (the "Agreement"), the Company and each of the undersigned Purchasers
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. The Company wishes to extend the period in which the
Company may sell the additional shares of Series D Preferred Stock
pursuant to the Agreement until February 15, 2002.
B. The Company wishes to increase the number of Shares of
Series D Preferred Stock authorized for sale and issuance the Agreement
to forty-nine million six hundred ninety-six (49,000,696) shares.
AGREEMENT
The parties to the Agreement hereby agree as follows:
1. The definition of "Shares" in the "Recitals" of the Agreement is
amended to refer to an aggregate of forty-nine million six hundred ninety-six
(49,000,696) shares of Series D Preferred Stock.
2. Section 2.3 of the Agreement is hereby amended and restated to read
in its entirety as set forth below:
"2.3 SUBSEQUENT SALES OF SHARES. At any time on or before
January 15, 2002 or at such time as the Company and the holders of a
majority of the Shares purchased at the First Closing (pursuant to
Section 2.1) may mutually agree, the Company may sell the balance of
the Shares not sold at the First Closing to such persons as may be
approved by the Board of Directors of the Company (the "ADDITIONAL
PURCHASERS"). All such sales made at any additional closings after
December 1, 2001 (each a "SUBSEQUENT CLOSING"), (i) shall be made on
the terms and conditions set forth in this Agreement, (ii) the
representations and warranties of the Company set forth in Section 3
hereof (and the Schedule of Exceptions) shall speak as of the date of
such Subsequent Closing, (iii) the representations and warranties of
the Additional Purchasers in Section 4 hereof shall speak as of such
Subsequent Closing and (iv) the conditions of the Additional
Purchasers' obligations at the Subsequent Closing shall be those set
forth in Section 5.2 below. This Agreement, including without
limitation, the Schedule of Purchasers, may be amended by the Company
without the consent of the Purchasers to include any Additional
Purchasers. Any shares of the Company's Series D Preferred Stock sold
pursuant to this Section 2.3 shall be deemed to be "Shares" for all
purposes under this Agreement and 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. "
3. 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.
1
4. The undersigned Purchasers consent to a restatement of the Agreement
to incorporate this Amendment.
5. This Amendment shall be effective upon its execution by the Company
and the holders of a majority of the Shares.
6. 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
SECOND AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
2
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to the Series D Preferred Stock Purchase Agreement as of the date set
forth in the first paragraph above.
COMPANY INVESTORS:
MYOGEN, INC. X.X. XXXXXX PARTNERS (SBIC), LLC
By: /s/ J. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------- ------------------------------
J. Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
President Title: Managing Director
NEW ENTERPRISE ASSOCIATES 10,
LIMITED PARTNERSHIP
By: NEA Partners 10, Limited
Partnership
/s/ C. Xxxxxxx Xxxxxxxx
----------------------------------
C. Xxxxxxx Xxxxxxxx, General
Partner
SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
Its General Partner
By: /s/ Xxx Xxxxxxxx
------------------------------
Manager
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
------------------------------
INTERWEST INVESTORS Q VIII, LP
By: InterWest Management Partners
VIII, LLC its general partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
SECOND AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
NEW ENTERPRISE ASSOCIATES 9,
LIMITED PARTNERSHIP
By: NEA Partners 9, Limited
Partnership
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxxx
General Partner
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx X. Zanse
------------------------------
Name: Xxxxx X. Zanse
Title: 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
PACIFIC RIM LIFE SCIENCE NO. 1
INVESTMENT PARTNERSHIP
By: Pacific Rim Ventures Co,
Ltd., Managing Partner of
Pacific Rim Life Science
No. 1/2 Investment
Partnership
By: /s/ Mashiro Michishita
------------------------------
Mashiro Michishita, M.D.,
Ph.D., Managing General
Partner
PACIFIC RIM LIFE SCIENCE NO. 2
INVESTMENT PARTNERSHIP
By: Pacific Rim Ventures Co,
Ltd., Managing Partner of
Pacific Rim Life Science
No. 1/2 Investment
Partnership
By: /s/ Mashiro Michishita
------------------------------
Mashiro Michishita, M.D.,
Ph.D., Managing General
Partner
SECOND AMENDMENT TO THE MYOGEN, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
2
CMEA LIFE SCIENCES FUND, L.P.
By: /s/ Signature Illegible
------------------------------
General Partner
HFM CHARITABLE REMAINDER TRUST
By:
------------------------------
Xxx X. Xxxxx, Authorized Agent
MONTAGU NEWHALL GLOBAL PARTNERS LP
By: /s/ C. Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: General Partner
----------------------------------
Xxxxx X. Low, Jr.
/s/ Xxxxx X. Zanse
----------------------------------
Xxx X. Zanse
----------------------------------
Xxxxxxxx XxXxxxxxx
----------------------------------
Xxxx Xxxxx
CHINA DEVELOPMENT INDUSTRIAL
BANK INC.
By:
------------------------------
Name:
------------------------
Title:
-----------------------
FIRST AMENDMENT TO THE MYOGEN, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
3
