EXHIBIT 10.5
MYOGEN, INC.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES C PREFERRED STOCK PURCHASE AGREEMENT (the "AGREEMENT") is
entered into as of this 23 day of November, 1999, 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 Thirteen Million Ninety Thousand Nine Hundred Ten (13,090,910)
shares of its Series C Preferred Stock (the "SERIES C STOCK");
WHEREAS, Purchasers desire to purchase the Series C Stock 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 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 (the "SHARES").
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 November 23, 1999 (the "FIRST CLOSING") and on the
date of the Second Closing (as defined below) at the offices of ▇▇▇▇▇▇ Godward
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other
time or place as the Company and Purchasers
1.
may mutually agree (each such date is hereinafter referred to as a "CLOSING
DATE"). The Purchasers shall be obligated, within 15 days after the date on
which a majority of the Company's Board of Directors approves an amendment to
the License Agreement (Enoximone) By and Between Hoechst ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
and the Company, dated October 1, 1998 (the "HMR AGREEMENT") which cures the
Company's default under the HMR Agreement, without any further action on the
part of the Company and regardless of any other development with respect to the
Company (unless such development is a Material Adverse Development (as defined
below)), to purchase the Shares indicated on Exhibit A hereto at the Second
Closing and all Shares purchased at such Second Closing shall be considered
Shares for the purposes of this Agreement upon the Company and the Purchasers
executing additional signature pages to this document as of the date of such
Second Closing and the payment by the Purchasers of the purchase price of the
Shares. 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, cancellation of indebtedness from
the Company or wire transfer of immediately available funds. The "Second
Closing" shall be the date which is within 15 days after date on which the
Company's Board of Directors approves the amendment to the HMR Agreement, as
mutually agreeable by the parties hereto. "Material Adverse Development" with
respect to this Section 2.1 and Section 5.2 shall mean any change or effect that
is materially adverse to the business, properties, assets, condition, prospects,
or results of operations of the Company taken as a whole.
2.2 DELIVERY. At each Closing, subject to the terms and conditions hereof,
the Company will deliver to the Purchasers certificates representing the number
of Shares to be purchased at the Closing by each Purchaser, against payment of
the purchase price therefor by check, wire transfer made payable to the order of
the Company, or cancellation of indebtedness.
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 Second Amended and Restated Investor Rights Agreement in the
form attached hereto as Exhibit C (the "INVESTOR RIGHTS AGREEMENT") and the
Second Amended Shareholders Agreement attached hereto as Exhibit D (the
"SHAREHOLDERS AGREEMENT"), 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 Shareholders 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
on the Company or its business. The
2.
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 Twenty-Seven
Million (27,000,000) shares of Common Stock, Four Million Three Hundred
Seventy-Two Thousand Two Hundred Forty-Five (4,372,245) shares of which are
issued and outstanding and Two Million Two Hundred Eighty Thousand (2,280,000)
shares of which are reserved for future issuance to employees, of which One
Million One Hundred Thousand Five Hundred Thirty-Five (1,100,535) shares are
subject to options or purchase rights which have been issued to the Company's
employees, consultants and other service providers and One Million One Hundred
Seventy-Nine Thousand Four Hundred Sixty-Five Thousand (1,179,465) are reserved
for options which have not been granted as of the date hereof and Twenty Million
(20,000,000) shares of Preferred Stock, Six Million Seventy-Three Thousand
(6,073,000) of which 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) of which are designated Series B Preferred
Stock, none of which are issued and outstanding, Thirteen Million One Hundred
Thousand (13,100,000) of which are designated Series C Preferred Stock, none of
which are issued and outstanding. All issued and outstanding shares of the
Company's Common Stock (i) have been duly authorized and validly issued to the
persons listed on Exhibit E 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 E, and except as may be granted pursuant to the Investor
Rights Agreement and the Shareholders 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. 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 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 action on the part of
the Company, its officers, directors and shareholders necessary for the
authorization of this Agreement, the Investor Rights Agreement and the
Shareholders Agreement, 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 and the Shareholders Agreement,
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
3.
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 delivered to each Purchaser its
(i) unaudited balance sheet as at September 30, 1999 (the "FINANCIAL
STATEMENTS"), copies of which are attached hereto as Exhibit F. The Financial
Statements are complete and correct in all material respects, and present fairly
the financial condition and position of the Company as of September 30, 1999.
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 September 30, 1999, 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.
(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 $10,000 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 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 $10,000 or, in the case of indebtedness
and/or liabilities individually less than $10,000, in excess of $25,000 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
4.
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 TO RELATED PARTIES. Except as set forth on the Schedule of
Exceptions, there are no obligations of the Company to owners, directors,
shareholders, 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 shareholders 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 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 September 30, 1999 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 key officers of the Company;
and the Company, to the best of its knowledge, does not know of the impending
resignation or termination of employment of any such officer;
(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;
5.
(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;
(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,
6.
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 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 shareholders 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
7.
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 and the Shareholders Agreement,
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.
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 or
the Shareholders Agreement 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 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
(federal, state and local) required to be filed by it. 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 of the date of this Agreement that is not
adequately provided for.
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
fight 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
8.
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.
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 G-1 and Exhibit G-2 attached hereto.
3.16 REGISTRATION RIGHTS. Except as required pursuant to the Investor
Rights Agreement and the Series B Preferred Stock Purchase Agreement proposed to
be entered into by and between the Company 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, as 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.
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.
3.19 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 5.2 hereof, the offer, sale
and issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") and will have been registered or qualified (or are 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
9.
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.
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 Shareholders 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 minutes of all meetings of and records of all actions
taken by directors and shareholders 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 Shareholders Agreement, the Restated Certificate or the Investors Rights
Agreement, the Company has no agreement, obligation or commitment with respect
to the election of any 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, with extended coverage, 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.
10.
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 Shareholders 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 Shareholders 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 Shareholders 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 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.
11.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the Shares and
the Conversion Shares for Purchaser's own 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 Shareholders 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.
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 Section 3 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 all obligations and conditions herein
required to be performed or observed by it on or prior to the First Closing.
12.
(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 Shareholders Agreement (except for such as may be properly obtained
subsequent to each 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 (n) 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) SHAREHOLDERS AGREEMENT. The Shareholders Agreement shall have been
executed and delivered by the parties thereto.
(i) BOARD OF DIRECTORS. Upon the Closing, the authorized size of the
Board of Directors of the Company shall be seven (7) members as set forth in
Shareholders Agreement.
(j) RESTATED CERTIFICATE. The Company shall have filed with the
Secretary of State of the State of Delaware the Restated Certificate.
(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 H.
(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.
13.
(m) KEY PERSON LIFE INSURANCE. The Company agrees to use its best
efforts to obtain from financially sound and reputable insurers term life
insurance on the life of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the amount of $2,000,000. Once
obtained, the Company will use its best efforts to maintain the term life
insurance required by this Section 5.1(m). Such insurance policies shall name
the Company as loss payee and shall not be cancelable by the Company without the
prior approval of the Board of Directors.
(n) 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.
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) EXECUTION OF THE AMENDMENT TO THE HMR AGREEMENT. A majority of the
Company's Board of Directors must have approved an amendment to the HMR
Agreement which cures the Company's default under the HMR Agreement and such
amendment shall have been executed by all necessary parties thereto and there
shall have been no Material Adverse Development with respect to the Company.
(b) 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.
(c) 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 (e) of this Section 5.2 have been
satisfied.
(d) 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 H 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.
(e) 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.
14.
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 the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by Purchasers in Section 4 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. An Investor Rights Agreement
substantially in the form attached hereto as Exhibit D shall have been executed
and delivered by the Purchasers.
(d) 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 Shareholders 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 any investigation made by any Purchaser and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company 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, 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 Shareholders 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.
15.
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 more than sixty-five percent (65%) of the
holders of Series C Stock sold pursuant to this Agreement (treated as if
converted and including any Shares issued upon the conversion of Series C Stock
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 more than sixty-five percent (65%) of the
holders of Series C Stock sold pursuant to this Agreement (treated as if
converted and including any Shares issued upon the conversion of Series C Stock
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 Shareholders 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 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 Closing, reimburse the reasonable fees and
expenses, not to exceed $15,000, of ▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special
counsel for the Purchasers, incurred in connection with the negotiation,
execution, delivery and performance of this Agreement.
16.
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 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
6.14 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
17.
IN WITNESS WHEREOF, the parties hereto have executed this SERIES C
PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY INVESTORS:
MYOGEN, INC. SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
its General Partner
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- --------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Manager
President
SEQUEL EURO LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
its General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Manager
CROSSPOINT VENTURE PARTNERS 1997
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
its General Partner
By:
--------------------------------
INTERWEST PARTNERS VI, LP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
General Partner
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
INTERWEST INVESTORS VI, LP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
General Partner
NEW ENTERPRISE ASSOCIATES IX,
LIMITED PARTNERSHIP
By: NEA Partners IX, Limited Partnership
By: /s/ Signature Illegible
--------------------------------
General Partner
NEA PRESIDENTS FUND, L.P.
By: NEA General Partners, L.P.
By: /s/ Signature Illegible
--------------------------------
General Partner
NEA VENTURES 1999, LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Vice President
NEW VENTURE PARTNERS IV L.P.
By: /s/ Signature Illegible
--------------------------------
General Partner
CMEA LIFE SCIENCES FUND, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
General Partner
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this SERIES C
PREFERRED STOCK PURCHASE AGREEMENT as of this 8th day of December.
INVESTORS:
SEQUEL LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
its General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Manager
SEQUEL EURO LIMITED PARTNERSHIP
By: Sequel Venture Partners, LLC
its General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Manager
CROSSPOINT VENTURE PARTNERS 1997
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
its General Partner
By:
--------------------------------
INTERWEST PARTNERS VI, LP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
General Partner
SERIES C SECOND CLOSING SIGNATURE PAGES
STOCK PURCHASE AGREEMENT
INTERWEST INVESTORS VI, LP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
General Partner
NEW ENTERPRISE ASSOCIATES 9,
LIMITED PARTNERSHIP
By: NEA Partners 9, Limited Partnership
By: /s/ Signature Illegible
-----------------------------------
General Partner
NEW VENTURE PARTNERS IV L.P.
By: /s/ Signature Illegible
-----------------------------------
General Partner
CMEA LIFE SCIENCES FUND, L.P.
By: /s/ Signature Illegible
-----------------------------------
General Partner
SERIES C SECOND CLOSING SIGNATURE PAGES
STOCK PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
FIRST CLOSING SECOND CLOSING
--------------------------- ---------------------------
NAME AND ADDRESS SHARES PRICE SHARES PRICE
---------------- --------- ------------- --------- -------------
New Enterprise Associates 9, Limited 2,887,274 $3,970,001.62 2,887,274 $3,970,001.62
Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
NEA Ventures 1999, Limited Partnership 3,636 4,999.50 3,636 4,999.50
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
NEA Presidents Fund, L.P. 18,181 24,998.88 18,181 24,998.88
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Sequel Limited Partnership 442,719 608,738.63 442,719 608,738.63
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sequel Euro Limited Partnership 193,644 266,260.50 193,644 266,260.50
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Crosspoint Venture Partners 1997 1,090,910 1,500,001.25 1,090,910 1,500,001.25
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
InterWest Partners VI, L.P. 881,455 1,212,000.63 881,455 1,212,000.63
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
InterWest Investors VI, L.P. 27,636 37,999.50 27,636 37,999.50
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
New Venture Partners IV L.P. 272,728 375,001.00 272,728 375,001.00
▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CMEA Life Sciences Fund, L.P. 727,272 999,999.00 727,272 999,999.00
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------- ------------- --------- -------------
TOTAL: 6,545,455 $9,000,000.51 6,545,455 $9,000,000.51