EX-10.9 3rd Amended/Restated Stockholders Agrmt

EX-10.9 11 d95096exv10w9.txt EX-10.9 3RD AMENDED/RESTATED STOCKHOLDERS AGRMT. 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. William Freytag and Michael Bristow). (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 Dan Mitchell). (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 Sigrid Van Bladel and Arnold L. Oronsky). 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 J.P. Morgan Partners (SBIC), LLC or its affiliates (the "J.P. MORGAN NOMINEE") and one of whom shall be an experienced pharmaceutical executive. The J.P. Morgan Nominee shall initially be Rodney Ferguson, 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 J.P. Morgan Partners (SBIC), LLC or its affiliates shall not be amended or waived without the written consent of J.P. Morgan 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] 7 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. William Freytag its General Partner ------------------------------------- J. William Freytag President and Chief Executive Officer By: /s/ Dan Mitchell ------------------------------ General Partner KEY STOCKHOLDERS: SEQUEL EURO LIMITED PARTNERSHIP By: Sequel Venture Partners, LLC /s/ Michael R. Bristow its General Partner - ----------------------------------------- Michael R. Bristow SAVACOR TRUST By: /s/ Dan Mitchell ------------------------------ Manager By: /s/ Michael R. Bristow CROSSPOINT VENTURE PARTNERS 1997 - ----------------------------------------- INVESTOCOR TRUST By: /s/ Don Milder ------------------------------ General Partner By: /s/ Michael R. Bristow - ----------------------------------------- INTERWEST PARTNERS VI, LP /s/ Michael Juliano - ----------------------------------------- By: /s/ Arnold Oronsky Michael Juliano ------------------------------ General Partner /s/ Leslie A. Leinwand - ----------------------------------------- Leslie A. Leinwand INTERWEST INVESTORS VI, LP /s/ M. Benjamin Perryman - ----------------------------------------- M. Benjamin Perryman By: /s/ Arnold Oronsky ------------------------------ General Partner /s/ Milton Levin - ----------------------------------------- Milton Levin /s/ Frank Stewart - ----------------------------------------- Frank Stewart STOCKHOLDERS AGREEMENT /s/ J. William Freytag - ----------------------------------------- J. William Freytag NEW ENTERPRISE ASSOCIATES 9, LIMITED PARTNERSHIP /s/ Joseph L. Turner - ----------------------------------------- Joseph L. Turner By: NEA Partners 9, Limited Partnership By: /s/ C. Richard Kramlich ---------------------------------- /s/ John R. Julian C. Richard Kramlich - ----------------------------------------- General Partner John R. Julian NEA PRESIDENTS FUND, L.P. /s/ Ellen Leigh Curtin - ----------------------------------------- Ellen Leigh Curtin By: NEA General Partners, L.P. By: /s/ C. Richard Kramlich ---------------------------------- General Partner - C. Richard Kramlich /s/ Richard J. Gorczynski - ----------------------------------------- Richard J. Gorczynski NEA VENTURES 1999, LIMITED PARTNERSHIP /s/ Gordon Van Dusen - ----------------------------------------- Gordon Van Dusen By: /s/ Jacqueline Myers ------------------------------ Vice President - Jacqueline Myers /s/ Eric N. Olson NEW VENTURE PARTNERS IV L.P. - ----------------------------------------- Eric N. Olson By: /s/ ------------------------------ By: /s/ ------------------------------ CMEA LIFE SCIENCES FUND, L.P. By: /s/ Thomas R. Baruch ------------------------------ General Partner STOCKHOLDERS AGREEMENT J.P. MORGAN PARTNERS (SBIC), LLC By: /s/ Rodney A. Ferguson ------------------------------ Its: Managing Director ----------------------------- NEW ENTERPRISE ASSOCIATES 10, LIMITED PARTNERSHIP By: NEA Partners 10, Limited Partnership By: /s/ C. Richard Kramlich ------------------------------ C. Richard Kramlich - General Partner J.P. MORGAN SECURITIES INC. By: /s/ James F. Zanze ------------------------------ Its: Managing Director ----------------------------- BVCF IV, L.P. By: J.W. Puth Associates, LLC, its General Partner By: Brinson Venture Management, LLC, its Attorney-in-fact By: Adams Street Partners, LLC, as its Administrative Member By: /s/ Terry Gould ------------------------------ Terry Gould Partner INTERWEST PARTNERS VIII, LP By: InterWest Management Partners VIII, LLC, its general partner By: /s/ Arnold Oronsky ------------------------------ STOCKHOLDERS AGREEMENT INTERWEST INVESTORS VIII, LP By: InterWest Management Partners VIII, LLC, its general partner By: /s/ Arnold Oronsky ------------------------------ INTERWEST INVESTORS Q VIII, LP By: InterWest Management Partners VIII, LLC, its general partner By: /s/ Arnold Oronsky ------------------------------ PACIFIC RIM LIFE SCIENCE NO. 1 INVESTMENT PARTNERSHIP By: Pacific Rim Life Science No. 1/2 Investment Partnership, its general partner By: /s/ Masahiro Michishita ------------------------------ Masahiro Michishita, 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/ Masahiro Michishita ------------------------------ Masahiro Michishita, M.D., Ph.D., Managing General Partner HFM CHARITABLE REMAINDER TRUST By: /s/ Roy M. Jones ------------------------------ Roy M. Jones, Authorized Agent STOCKHOLDERS AGREEMENT MONTAGU NEWHALL GLOBAL PARTNERS LP By: /s/ C. Ashton Newhall ------------------------------ Name: Ashton Newhall ---------------------------- Title: General Partner --------------------------- /s/ David N. Low, Jr. ---------------------------------- David N. Low, Jr. /s/ Jim F. Zanze ---------------------------------- Jim F. Zanze /s/ Philippe McAuliffe ---------------------------------- Philippe McAuliffe /s/ Mike Gaito ---------------------------------- Mike Gaito STOCKHOLDERS AGREEMENT CHINA DEVELOPMENT INDUSTRIAL BANK INC. By: CHINA DEVELOPMENT INDUSTRIAL BANK INC. By: /s/ Tai-ying Liu ------------------------------ Tai-ying Liu, Chairman & CEO STOCKHOLDERS AGREEMENT PERSEUS-SOROS BIOPHARMACEUTICAL FUND, LP By: Perseus-Soros Partners, LLC, General Partner By: SFM Participation, LP, Member By: SFM AH, Inc., General Partner /s/ Richard D. Holahan, Jr. ------------------------------ By: Richard D. Holahan, Jr. Title: Secretary STOCKHOLDERS AGREEMENT HUNT VENTURES, L.P. By: /s/ J. Fulton Murray III ------------------------------ Name: J. Fulton Murray, III ---------------------------- Title: Managing Director SILICON VALLEY BANCVENTURES, L.P. By: Silicon Valley BancVentures, Inc., Its General Partner By: /s/ Greg Becker ------------------------------ Name: Greg Becker ---------------------------- Title: Investment Manager --------------------------- STOCKHOLDERS AGREEMENT Pacific Rim Capital LLC /s/ T. Chester Wang ---------------------------------- T. Chester Wang, Manager /s/ James Margolis, MD ---------------------------------- James Margolis, MD THOMAS J. TOY & CONSTANCE K. TOY, JTWROS /s/ Thomas J. Toy ---------------------------------- Thomas J. Toy /s/ Constance K. Toy ---------------------------------- Constance K. Toy /s/ Walter M. Narajowski ---------------------------------- Walter M. Narajowski DIECK-MCGURK AND ASSOCIATES, LP By: /s/ Ronald Dieck ---------------------------------- Ronald Dieck, General Partner /s/ Daniel Ruben ---------------------------------- Daniel Ruben /s/ David Pflueger ---------------------------------- David Pflueger /s/ James Larrick ---------------------------------- James Larrick STOCKHOLDERS AGREEMENT EXHIBIT A LIST OF KEY STOCKHOLDERS Michael R. Bristow Savacor Trust InvestoCor Trust Michael Juliano Milton Levin Leslie A. Leinward M. Benjamin Perryman Frank Stewart J. William Freytag Joseph L. Turner John R. Julian Ellen Leigh Curtin Richard J. Gorczynski Gordon Van Dusen Eric N. Olson EXHIBIT B LIST OF INVESTORS Sequel Limited Partnership 4430 Arapahoe Avenue, Suite 220 Boulder, CO 80303 Sequel Euro Limited Partnership 4430 Arapahoe Avenue, Suite 220 Boulder, CO 80303 Crosspoint Venture Partners 1997 18552 MacArthur Blvd., Suite 400 Irvine, CA 92612 InterWest Partners VI, L.P. 3000 Sand Hill Road Building 3, Suite 255 Menlo Park, CA 94025 InterWest Investors VI, L.P. 3000 Sand Hill Road Building 3, Suite 255 Menlo Park, CA 94025 New Enterprise Associates 9, Limited Partnership 1119 St. Paul Street Baltimore, MD 21202 Attn: Gene Trainor NEA Presidents Fund, L.P. 1119 St. Paul Street Baltimore, MD 21202 Attn: Gene Trainor NEA Ventures 1999, Limited Partnership 1119 St. Paul Street Baltimore, MD 21202 Attn: Gene Trainor New Venture Partners IV L.P. 1119 St. Paul Street Baltimore, MD 21202 CMEA Life Sciences Fund, L.P. One Embarcadero Center, Suite 3250 San Francisco, CA 94111 Attn: Meryl L. Schreibstein J.P. Morgan Partners (SBIC), LLC 50 California Street, Suite 2940 San Francisco, CA 94111 Attn: Rod Ferguson With a copy to: J.P. Morgan Partners Official Notices Clerk 1221 Avenue of the Americas New York, NY 10020 Facsimile: (212) 899-3401 and J.P. Morgan Partners (SBIC), LLC 50 California Street, Suite 2940 San Francisco, CA 94111 Attn: Shannon Horton New Enterprise Associates 10, Limited Partnership 1119 St. Paul Street Baltimore, MD 21202 Attn: Gene Trainor J.P. Morgan Securities Inc. c/o Kathy Choi 225 Bush St., 4th Floor San Francisco, CA 94104 BVCF IV, L.P. c/o Adams Street Partners, LLC 209 South LaSalle Street Chicago, IL 60604 Attn: Craig S. Taylor, Ph.D. InterWest Partners VIII, L.P. 3000 Sand Hill Road Building 3, Suite 255 Menlo Park, CA 94025 Attn: Arnold L. Oronsky InterWest Investors VIII, L.P. 3000 Sand Hill Road Building 3, Suite 255 Menlo Park, CA 94025 Attn: Arnold L. Oronsky 2 InterWest Investors Q VIII, L.P. 3000 Sand Hill Road Building 3, Suite 255 Menlo Park, CA 94025 Attn: Arnold L. Oronsky Pacific Rim Life Science No.1 Investment Partnership (C/O) Pacific Rim Ventures Co., Ltd. 2nd Floor, Green Plaza 3-7-20 Komazawa, Setagaya-ku Tokyo 154-0012, Japan Pacific Rim Life Science No.2 Investment Partnership (C/O) Pacific Rim Ventures Co., Ltd. 2nd Floor, Green Plaza 3-7-20 Komazawa, Setagaya-ku Tokyo 154-0012, Japan Both care of: Daisuke Takahashi, Vice President, Pacific Rim Ventures Co., Ltd. 2nd Floor, Green Plaza 3-7-20 Komazawa, Setagaya-ku Tokyo 154-0012, Japan TEL: 81-3-5779-6752 FAX: 81-3-5779-6753 ***@*** HFM Charitable Remainder Trust 3060 Peachtree Road NW Nineteenth Floor Atlanta, GA 30305 Attn: Roy M. Jones Montagu Newhall Global Partners LP 52 Upper Brook Street London W1K 2BU Attention: Rupert Montagu David N. Low, Jr 21 Deer Park Drive Greenwich, CT 06831 Jim Zanze 2371 Broadway San Francisco, CA. 94115 Philippe McAuliffe 19 East 7th St., Apt. 4 New York, NY 10003 3 Mike Gaito 95 Horatio Street, Apt. 4C New York, NY 10014 China Development Industrial Bank Inc. 125 Naking East Road Section 5 Overseas Business Department Taipei, 105 Taiwan Attn: Claire Tsai, Assistant Manager Perseus-Soros Biopharmaceutical Fund, LP 888 Seventh Avenue, 29th Floor New York, NY 10106 Attn: Steve Elms Andrew N. Schiff with a copy to: Perseus-Soros Biopharmaceutical Fund, L.P. c/o Soros Fund Management LLC 888 Seventh Avenue, 31st Floor New York, NY 10106 Attention: Richard D. Holahan, Jr., Esq. and Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 Attention: Bruce A. Gutenplan, Esq. Hunt Ventures, L.P. Suite 1500 1445 Ross Avenue Dallas, TX 75202 Attn: Fulton Murray Tom Hurtekant, Esq. Silicon Valley BancVentures L.P. c/o Silicon Valley BancVentures, Inc. Attn: Greg Becker 3000 Sand Hill Road Building 1, Suite 200 Menlo Park, CA 94025 4 T. Chester Wang c/o Acorn Campus LLC 6 Results Way Cupertino, CA 95014 James Margolis, MD 4701 Meridian Avenue Suite 440, Adams Building Miami Beach, FLA 33140 Thomas J. Toy & Constance K. Toy, JTWROS 331 Parrott Drive San Mateo, CA 94402 Walter M. Narajowski 84 Blue Lagoon Laguna Beach, Ca. 92651 Dieck-McGurk and Associates, LP 335 Lowell Avenue Palo Alto, CA 94301 Attn: Ron Dieck and Erin McGurk Daniel Ruben 15233 Camarillo St. Sherman Oaks, CA 91403 David Pflueger Pluris Healthcare Systems 16596 W. Bayaud Dr. Golden, CO 80401 James Larrick Panorama Research 2462 Wyandotte Mt. View, CA 94043 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 Soros 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 J.P. Morgan Partners (SBIC), LLC or its affiliates (the "J.P. MORGAN NOMINEE"), one of whom shall be nominated by Perseus Soros (the "PERSEUS SOROS NOMINEE") and one of whom shall be an experienced pharmaceutical executive. The J.P. Morgan Nominee shall initially be Rodney Ferguson, the Perseus Soros Nominee shall initially be Andrew N. Schiff, 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. William Freytag its General Partner ------------------------------------- J. William Freytag President and Chief Executive Officer By: /s/ Dan Mitchell ------------------------------ General Partner KEY STOCKHOLDERS: SEQUEL EURO LIMITED PARTNERSHIP By: Sequel Venture Partners, LLC /s/ Michael R. Bristow its General Partner - ---------------------------------------- Michael R. Bristow SAVACOR TRUST By: /s/ Dan Mitchell ------------------------------ Manager By: Michael R. Bristow CROSSPOINT VENTURE PARTNERS 1997 ------------------------------------ INVESTOCOR TRUST By: /s/ Don Milder ------------------------------ General Partner By: Michael R. Bristow ------------------------------------ INTERWEST PARTNERS VI, LP /s/ Michael Juliano - --------------------------------------- Michael Juliano By: /s/ Arnold Oronsky ------------------------------ General Partner /s/ Leslie A. Leinwand - --------------------------------------- Leslie A. Leinwand /s/ M. Benjamin Perryman INTERWEST INVESTORS VI, LP - --------------------------------------- M. Benjamin Perryman By: /s/ Arnold Oronsky ------------------------------ General Partner /s/ - --------------------------------------- Milton Levin /s/ Frank Stewart - --------------------------------------- Frank Stewart FIRST AMENDMENT TO THE MYOGEN, INC. THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT /s/ J. William Freytag - --------------------------------------- J. William Freytag NEW ENTERPRISE ASSOCIATES 9, LIMITED PARTNERSHIP /s/ Joseph L. Turner - --------------------------------------- Joseph L. Turner By: NEA Partners 9, Limited Partnership By: /s/ C. Richard Kramlich ------------------------------ /s/ John R. Julian C. Richard Kramlich - --------------------------------------- General Partner John R. Julian NEA PRESIDENTS FUND, L.P. /s/ Ellen Leigh Curtin - --------------------------------------- Ellen Leigh Curtin By: NEA General Partners, L.P. By: /s/ C. Richard Kramlich ------------------------------ General Partner - C. Richard Kramlich /s/ Richard J. Gorczynski - --------------------------------------- Richard J. Gorczynski NEA VENTURES 1999, LIMITED PARTNERSHIP /s/ Gordon Van Dusen - --------------------------------------- Gordon Van Dusen By: /s/ Jacqueline Myers ------------------------------ Vice President - Jacqueline Myers NEW VENTURE PARTNERS IV L.P. /s/ Eric N. Olson - --------------------------------------- Eric N. Olson By: ------------------------------ By: ------------------------------ CMEA LIFE SCIENCES FUND, L.P. By: /s/ Thomas R. Baruch ------------------------------ General Partner FIRST AMENDMENT TO THE MYOGEN, INC. THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT 2 J.P. MORGAN PARTNERS (SBIC), LLC By: /s/ Rodney A. Ferguson ------------------------- Its: Managing Director ------------------------- NEW ENTERPRISE ASSOCIATES 10, LIMITED PARTNERSHIP By: NEA Partners 10, Limited Partnership By: /s/ C. Richard Kramlich, -------------------------- C. Richard Kramlich, General Partner J.P. MORGAN SECURITIES INC. By: /s/ James F. Zanze -------------------------- Its: Managing Director ------------------------- BVCF IV, L.P. By: J.W. Puth Associates, LLC, its General Partner By: Brinson Venture Management, LLC, its Attorney-in-fact By: Adams Street Partners, LLC, as its Administrative Member By: /s/ Craig S. Taylor -------------------------- Craig S. Taylor Partner INTERWEST PARTNERS VIII, LP By: InterWest Management Partners VIII, LLC, its general partner By: /s/ Arnold Oronsky -------------------------- INTERWEST INVESTORS VIII, LP By: InterWest Management Partners VIII, LLC, its general partner By: /s/ Arnold Oronsky -------------------------- 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/ Masahiro Michishita ------------------------------ Masahiro Michishita, 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/ Masahiro Michishita ------------------------------ Masahiro Michishita, M.D., Ph.D., Managing General Partner HFM CHARITABLE REMAINDER TRUST By: ------------------------------ Roy M. Jones, Authorized Agent FIRST AMENDMENT TO THE MYOGEN, INC. THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT 4 MONTAGU NEWHALL GLOBAL PARTNERS LP By: /s/ C. Ashton Newhall ------------------------------ Name: C. Ashton Newhall ---------------------------- Title: General Partner --------------------------- ---------------------------------- David N. Low, Jr. /s/ Jim F. Zanze ---------------------------------- Jim F. Zanze ---------------------------------- Philippe McAuliffe ---------------------------------- Mike Gaito CHINA DEVELOPMENT INDUSTRIAL BANK INC. By: ------------------------------ Name: ---------------------------- Title: --------------------------- FIRST AMENDMENT TO THE MYOGEN, INC. THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT 5