Exhibit
10.4


 


FIFTH
AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT


 


This Fifth Amended and
Restated Registration Rights Agreement (the “Agreement”) is made as of
May 8, 2003, by and among Acorda
Therapeutics, Inc., a Delaware corporation (the “Company”), and each
of the persons and entities that are parties to the “Prior Agreement” (as
hereafter defined), each of the “Purchasers” under the Series J Agreement that
becomes a party hereto and each other person or entity that becomes a party
hereto pursuant to the terms hereof (all such persons and entities are referred
to herein as “Purchasers” and their names and addresses are set forth on the
Schedule of Purchasers attached hereto as it may be amended from time to time).


 


Recitals


 


A.                                   In
connection with the issuance and sale of shares of its Preferred Stock, the
Company has granted, and anticipates that it will continue to grant,
registration and other rights to the purchasers of its Preferred Stock or other
securities or obligations entitling the holder to acquire directly or
indirectly Preferred Stock of the Company on a pari passu basis.


 


B.                                     The
Company desires to amend and restate the Fourth Amended and Restated
Registration Rights Agreement dated as of December 20, 2000, between the
Company and the “Purchasers” identified therein (the “Prior Agreement”) to
effect certain changes to the rights and obligations of the parties herein in
connection with the completion of an equity financing involving the sale of the
Company’s Series J Preferred Stock pursuant to a Series J Preferred Stock
Purchase Agreement dated as of the date hereof among the Company and the
“Purchasers” identified therein (the “Series J Agreement”).


 


NOW THEREFORE, in consideration of the foregoing, the
parties agree as follows:


 


1.                                       Certain
Definitions.  As used in this
Agreement, the following terms will have the following respective meanings:


 


“Act” means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.


 


“Affiliate” of a Holder, as used in Section 2(a)
and Section 13,  includes, but is
not limited to (a) a general or limited partner of a Holder, (b) a
member of a Holder, (c) an officer, director or manager of a Holder,
(d) an equity owner of a Holder, (e) if the Holder is a trust, a
successor trust or the beneficiaries of the trust, (f) a company
controlling, controlled by or under common control with the Holder, (g) a
spouse, child, stepchild, parent, stepparent or sibling of a Holder, by way of
gift, (h) a revocable trust for the benefit of the Holder or his immediate
family via an inter vivos transfer and assignment.


 


“Commission” means the United States Securities and
Exchange Commission or any other federal agency at the time administering the
Act or the Exchange Act or the Exchange Act.


 

















 


“Conversion Stock” means the shares of the Company’s
Common Stock issuable or issued upon conversion or exercise of Preferred Stock.


 


“Convertible Securities” means securities or
obligations of the Company entitling the holder to acquire directly or indirectly
Preferred Stock pursuant to a stock purchase, warrant, convertible note or
related agreement.


 


“Exchange Act” means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.


 


“Holder” means the Purchasers holding Registrable
Securities or securities convertible, exercisable or exchangeable into
Registrable Securities and any person holding such securities to whom the
rights under this Agreement have been transferred in accordance with
Section 13 hereof.


 


“Initiating Holders” means any Holder or Holders who
in the aggregate hold at least 60% of the Registrable Securities at the time of
the relevant event if an initial public offering of Company securities
registered under the Act has not taken place or 30% of the Registrable
Securities at any other time.


 


“Notes” means any promissory notes issued by the
Company that are convertible into or exchangeable for any series of the
Preferred Stock or other equity securities of the Company.


 


“Preferred Stock” means, collectively, issued and
outstanding shares of the Company’s Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E-1 Preferred Stock, Series E-2 Preferred
Stock, Series F Preferred Stock, Series G Preferred Stock,
Series H Preferred Stock, Series I Preferred Stock and Series J
Preferred Stock and Convertible Securities.


 


The terms “register,” “registered” and “registration”
refer to a registration effected by preparing and filing a registration statement
in compliance with the Act, and the declaration or ordering of the
effectiveness of such registration statement.


 


“Registrable Securities” means (i) the Conversion
Stock, (ii) any Common Stock of the Company issued or issuable with
respect to the Conversion Stock upon any stock split, stock dividend,
recapitalization, or similar event and (iii) any Common Stock delivered to
the Holder as full or partial payment in respect of the Notes which are
“restricted securities” within the meaning of Rule 144; provided, however,
that shares of Common Stock or other securities shall no longer be treated as
Registrable Securities after they have been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction, whether in a registered offering, pursuant to Rule 144, or
otherwise, if in connection with the sale the restrictive legends required
pursuant to Section 2(a) have been removed; and provided, further, that if
all Company securities of a Purchaser that would be Registrable Securities but
for this provision can be sold without any volume or time restrictions under
Rule 144(k) and if the Company removes the restrictive legends required by
Section 2(a), then those Company securities shall no longer be Registrable
Securities.


 


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“Registration Expenses” means all expenses incurred by
the Company in complying with Sections 5, 6, and 7 hereof, including, without
limitation, all registration, qualification, and filing fees, printing
expenses, escrow fees and disbursements of counsel for the Company, blue sky
fees and expenses, all accounting fees, including the expense of any special
audits incident to or required by such registration, and the reasonable fees
and expenses of one counsel for the selling Holders not to exceed $15,000 (but
excluding the compensation of regular employees of the Company which shall be
paid in any event by the Company). 
Registration Expenses will not include expenses of the holders of
Registrable Securities to the extent limited or precluded by applicable blue
sky laws.  Registration Expenses will
not include selling commissions, underwriting discounts, other compensation
paid to underwriters or other agents or brokers to effect the sale, stock
transfer taxes, or special counsel of any Holder or Holders except as provided
in the first sentence of this paragraph.


 


“Restricted Securities” means the securities of the
Company required to bear the legend set forth in Section 2 hereof.


 


“Warrants” means any warrants granted by the Company
for the purchase of any series of the Preferred Stock.


 


2.                                       Restrictive
Legend.  Each certificate
representing (i) the Preferred Stock, (ii) the Warrants,
(iii) the Conversion Stock, (iv) the Notes, and (v) any other securities
issued in respect of the Preferred Stock, the Warrants, or the Conversion Stock
or the Notes upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 4 below) be stamped or otherwise imprinted with a
legend in substantially the following form (in addition to any legend required
under applicable securities laws of any state or foreign jurisdiction), as and
if appropriate.


 


(a)                                  “THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”).  THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR, IF REASONABLY REQUESTED
BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED.”


 


(b)                                 “THESE
SECURITIES ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY.”


 


(c)                                  Each
Holder consents to the Company’s making a notation on its records and giving
instructions to any transfer agent of the Restricted Securities, in order to
implement the restrictions on transfer established in this Agreement.


 


3.                                       Notice
of Proposed Transfers.


 


(a)                                  Each
Holder by acceptance of Restricted Securities agrees to comply in all respects
with the provisions of this Section 3; provided, however, that the


 


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restrictions on transfer as set forth herein shall be subject to any
superseding agreement that may exist between the Holder and the Company.  Prior to any proposed sale, assignment,
transfer, or pledge of any Restricted Securities, unless either (i) there is in
effect a registration statement under the Act covering the proposed transfer,
or (ii) within a reasonable time after sale, assignment, transfer or pledge if
made to an Affiliate of a Holder, the Holder thereof gives notice to the
Company of such Holder’s intention to effect such transfer, sale, assignment,
or pledge (the “Transfer Notice”).  The
Transfer Notice shall describe the manner and circumstances of the proposed transfer,
sale, assignment, or pledge in sufficient detail, including (i) the number
or amount of the Restricted Securities to be sold or transferred, (ii) the
price for which the Holder proposes to sell, transfer, or assign the Restricted
Securities, and (iii) the name of the proposed purchaser or
transferee.  Except for a transfer of
Restricted Securities by a Holder to one of its Affiliates, each such notice
shall also be accompanied, if requested by the Company and at such Holder’s
expense, by a written opinion of legal counsel reasonably satisfactory to the
Company, which opinion shall be addressed to the Company to the effect that the
proposed transfer of the Restricted Securities may be effected without
registration under the Act.  The Company
agrees that it will not require such opinions of counsel to the Holder for
transfers made pursuant to Rule 144, except in unusual circumstances.


 


(b)                                 Each
certificate evidencing the Restricted Securities transferred as provided above
(except sales pursuant to a registration statement under the Act) will bear,
except if such transfer is made pursuant to Rule 144, the appropriate
restrictive legends set forth in Section 2 above, except that such certificate
shall not bear the restrictive legend set forth in Section 2(a) if in the
opinion of counsel of such Holder and counsel for the Company such legend is
not required in order to establish compliance with any provision of the Act.


 


4.                                       Removal
of Restrictions on Transfer Securities. 
Any legend referred to in Section 2(a) hereof stamped or imprinted
on a certificate evidencing the Restricted Securities, and the stock transfer
instructions and record notations with respect to such Restricted Securities
will be removed and the Company will issue a certificate without such legend to
the Holder of such Restricted Securities if (i) such Restricted Securities
are registered under the Act or (ii) such Holder provides the Company with
(a) an opinion of counsel (which may be counsel for the Company),
reasonably satisfactory to the Company, to the effect that a public sale or
transfer of such Restricted Securities may be made without registration under
the Act or (b) assurances, which may, at the Company’s reasonable
discretion, include an opinion of counsel reasonably satisfactory to the
Company, that such Restricted Securities can be sold pursuant to an exemption
from registration under Section (k) of Rule 144 under the Act.


 


5.                                       Requested
Registration.


 


(a)                                  Request
for Registration.  In the event the
Company shall receive from Initiating Holders a request that the Company effect
any registration, qualification, or compliance under the Act with respect to
all or any portion of the Registrable Securities the Company will:


 


(i)                                     within
twenty days of the Company’s receipt of such notice, give written notice of the
proposed registration, qualification, or compliance to all other Holders; and


 


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(ii)                                  as
soon as practicable, use its best efforts to effect such registration,
qualification, or compliance (including without limitation, filing
post-effective amendments, appropriate qualification under applicable blue sky
or other state securities laws and appropriate compliance with applicable
registrations issued under the Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or such Holders joining in such request as are
specified in a written request received by the Company within 20 days after
receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to take any action to effect any such
registration, qualification, or compliance pursuant to this Section 5:


 


(1)                                  in
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification, or compliance unless the Company is already subject to service
in such jurisdiction and except as may be required by the Act; or


 


(2)                                  if
the anticipated aggregate offering price of the Registrable Securities proposed
to be registered could not be reasonably determined by the Initiating Holders
at the time of their request for registration to be at least $5 million;
or


 


(3)                                  prior
to the earlier of (i) November 1, 2004 or (ii) the date six
months immediately following the effective date of any registration statement
pertaining to the initial public offering of securities of the Company (other
than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan); or


 


(4)                                  after
the Company has effected three such registrations pursuant to this
Section 5(a), and such registrations have been declared or ordered
effective; or


 


(5)                                  at
any time during which the Company is qualified to use Form S-3 for
registration of the Registrable Securities, provided the Company treats the
Initiating Holders’ request as a request for registration pursuant to
Section 7 and promptly proceeds to effect such registration; or


 


(6)                                  if
the Company shall furnish to such Holders a certificate signed by the President
of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its stockholders
for a registration statement to be filed in the near future, whereby the
Company’s obligations to use its best efforts to register, qualify or comply under
this Section 5(a) shall be deferred for a period of up to 120 days;
provided, however, that the Company shall not exercise such right more than
once in a twelve-month period.


 


Subject to the foregoing
clauses (1) through (6), the Company shall file a registration statement
covering the Registrable Securities so requested to be registered as soon as
reasonably practicable after receipt of the request or requests of the
Initiating Holders.


 


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(b)                                 Underwriting.  If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their request made
pursuant to Section 5, and the Company shall include such information in
the written notice referred to in Section 5(a)(i) above.  The right of any Holder to registration
pursuant to Section 5 shall be conditioned upon such Holder’s
participation in the underwriting arrangements described by this
Section 5(b), and the inclusion of such Holder’s Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder with respect to such participation and
inclusion) to the extent requested shall be limited to the extent provided
herein.  A Holder may elect to include
in such underwriting all or any portion of the Registrable Securities he, she
or it holds.


 


The Company shall (together with all Holders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with a managing underwriter of
recognized national standing selected for such underwriting by the Company and
reasonably acceptable to a majority of the Holders proposing to distribute
their securities through such underwriting. 
Notwithstanding any other provision of this Section 5, if the
managing underwriter advises the Initiating Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the Company will so advise all Holders of Registrable Securities, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all such Holders thereof
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holder; provided, however, that the number
of shares of Registrable Securities to be included in such underwriting shall
not be reduced unless all other securities are first entirely excluded from the
underwriting.  No Registrable Securities
excluded from the underwriting by reason of the underwriter’s marketing
limitation shall be included in such registration.  To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of
shares allocated to any Holder to the nearest 100 shares.


 


If any Holder of Registrable Securities disapproves of
the terms of the underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company, the managing underwriter and the Initiating
Holders.  The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from registration;
provided, however, that if by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Holders may be included
in such registration (up to the maximum of any limitation imposed by the
underwriters), then the Company will offer to all other Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 5(b).


 


If the underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include securities
for its own account if the underwriter so agrees and if the number of
Registrable Securities that would otherwise have been included in such
registration and underwriting will not thereby be limited.


 


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6.                                       Company
Registration.


 


(a)                                  Notice
of Registration.  If at any time or
from time to time, the Company shall determine to register any of its
securities, either for its own account or the account of any holder of its
securities, other than (i) a registration relating solely to employee
benefit plans, (ii) a registration relating solely to a Commission
Rule 145 transaction, (iii) a registration pursuant to Section 5
hereof, or (iv) a registration pursuant to Section 7 hereof, the
Company will :


 


(i)                                     promptly
give to each Holder written notice thereof; and


 


(ii)                                  include
in such registration (and any related qualification under blue sky laws or
other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests, made within
20 days after receipt of such written notice from the Company, by any
Holder.  Such written request may seek
the registration of all or any portion of a Holder’s Registrable Securities.


 


(b)                                 Underwriting.  If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice pursuant to
Section 6(a)(i).  In such event,
the right of any Holder to registration pursuant to this Section 6 shall
be conditioned upon such Holder’s participation in such underwriting and the
inclusion of Holder’s Registrable Securities in the underwriting to the extent
provided herein.  All Holders proposing
to distribute their securities through such underwriting shall (together with
the Company) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.  Notwithstanding any other provision of this
Section 6, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the managing
underwriter may (subject to the limitation set forth below) limit or exclude
from such underwriting the Registrable Securities and other securities of the
Holders to be distributed.  If the
Company is so advised by the managing underwriter, then all securities other
than Registrable Securities and the securities proposed to be registered by the
Company shall first be excluded from the registration.  If additional securities must be eliminated
as a consequence of the managing underwriter’s determination, then the Company
shall so advise all Holders distributing their Registrable Securities through
such underwriting of such limitation or exclusion and, if applicable, the
number of shares of Registrable Securities that the managing underwriter
determines may be included in the registration and underwriting shall be allocated
among all Holders of Registrable Securities in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders.  Notwithstanding the foregoing,
in no event shall the amount of securities of the selling Holders included in
the offering be reduced below thirty percent (30%) of the total amount of
securities included in such offering, unless such offering is the initial
public offering of the Company’s securities, in which case the selling Holders
may be excluded entirely if the underwriters make the determination described
above and no other stockholder’s securities are included in such initial public
offering.  To facilitate the allocation
of shares in accordance with the above provisions, the Company may round the
number of shares allocated to any Holder or holder to the nearest 100 shares.


 


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If any Holder of Registrable Securities disapproves of
the terms of the underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company and the managing underwriter.  If by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed
by the underwriters), then the Company will offer to all other Holders who have
included Registrable Securities in the registration the right to include
additional Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 6(b).


 


(c)                                  Right
to Terminate Registration.  The
Company shall have the right to terminate or withdraw any registration by it
under this Section 6 prior to the effectiveness of such registration whether or
not any Holder has elected to include securities in such registration.


 


7.                                       Registration
on Form S-3.


 


(a)                                  Subject
to the remainder of this Section 7, and unless Rule 144 is available
for effecting a proposed transfer of all of the Registrable Securities of a
Holder and such transfer would result in the removal of the restrictive legend
required by Section 2(a) hereof, in the event that (i) the Company
receives from any Holder or Holders a written request that the Company file a
registration statement on Form S-3 (or any successor form to
Form S-3), or any similar short form registration statement (collectively,
“Form S-3”), for a public offering of Registrable Securities, the
reasonably anticipated aggregate price to the public of which, net of
underwriting discounts and commissions, would exceed $2 million and
(ii) the Company is a registrant entitled to use Form S-3 to register
the Registrable Securities for such an offering, the Company will promptly give
written notice of the proposed registration to all other Holders.  As soon as reasonably practicable
thereafter, the Company will use its diligent best efforts to cause all
Registrable Securities to be registered as may be so requested for the offering
on such form and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified in a written request
received by the Company within (20) days after receipt of such written notice
from the Company.  The provisions of
Section 5(b) shall be applicable to each registration initiated under this
Section 7.


 


(b)                                 Notwithstanding
the foregoing, the Company will not be obligated to take any action pursuant to
this Section 7(a):  (i) in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effectuating such registration,
qualification, or compliance unless the Company is already subject to service
in such jurisdiction and except as may be required by the Act; (ii) if the
Company has previously effected two registrations pursuant to Section 7(a)
whose effective dates were within the twelve month period whose last day is the
date the Company receives the request; and (iii) if the Company shall
furnish to such Holder a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors, it would be
seriously detrimental to the Company or its stockholders for registration
statements to be filed in the near future or for any disclosure to be made
that, in the opinion of the Board of Directors, duly advised by counsel, is
required to be made in connection with the sale of Registrable Securities


 


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pursuant to such registration, whereby the Company’s obligation to use
its best efforts to file a registration statement shall be deferred for a
period not to exceed 120 days from the receipt of the request to file such
registration by such Holder; provided however, that the Company shall not
exercise such right more than once in any twelve-month period.


 


8.                                       Expenses
of Registration.  All Registration
Expenses incurred in connection with the registrations pursuant to Sections 5,
6 and 7 shall be borne by the Company.


 


9.                                       Registration
Procedures.  Whenever required under
this Agreement to effect the registration of any Registrable Securities, the
Company will:


 


(a)                                  Prepare
and promptly file with the Commission a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become and remain effective for the greater of (i) one
hundred twenty (120) days or (ii) until the distribution described in the
registration statement has been completed;


 


(b)                                 Prepare
and file with the Commission such amendments and supplements to such
registration statements and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement;


 


(c)                                  At
least two business days before filing a registration statement or prospectus
including Registrable Securities and at least two business days before filing
any amendments or supplements thereto, furnish to the counsel of the Holders
copies of all documents proposed to be filed for that counsel’s review and
approval, which approval shall not be unreasonably withheld or delayed;


 


(d)                                 Furnish
to the Holders participating in such registration and to the underwriters of
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such Holders and underwriters may reasonably request in order to
facilitate the public offering of such securities;


 


(e)                                  Furnish,
at the request of any Holder requesting registration of Registrable Securities
pursuant to this Agreement, on the date that such Registrable Securities are
delivered to the underwriters for the sale in connection with a registration
pursuant to this Agreement, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date,
from the independent accountants of the Company, in form and substance as is
customarily given by independent accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities;


 


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(f)                                    In
the event of any underwritten public offering, enter into and perform its
obligations under an underwriting and other agreements, in usual and customary
form, with the managing underwriter of such offering and take all other actions
in connection with those agreements reasonably necessary to effect the offer
and sale of the Registrable Securities. 
Each Holder participating in such underwriting shall also enter into and
perform its obligations under such underwriting agreement;


 


(g)                                 Notify
each Holder of Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, or any
document included therein by reference includes an untrue statement of material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the circumstances
then existing, and prepare a supplement or amendment to the prospectus or any
such document incorporated therein by reference so that thereafter the
prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;


 


(h)                                 Cooperate
with each seller of Registrable Securities and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any required filings with the National
Association of Securities Dealers, Inc.;


 


(i)                                     Cause
such Registrable Securities registered pursuant hereunder to be listed on each
securities exchange or each inter-dealer quotation system on which similar
securities issued by the Company are then listed or quoted;


 


(j)                                     Provide
an institutional transfer agent and registrar for all Registrable Securities
registered pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration;


 


(k)                                  Use
its reasonable best efforts to register and qualify the securities covered by
such registration statement under such other securities or blue sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to service
of process in any such states or jurisdictions;


 


(l)                                     Subject
to reasonable confidentiality agreements, make available for inspection during
business hours on reasonable advance notice by any underwriter participating in
any disposition pursuant to a registration statement, and any attorney,
accountant or other agent of such underwriter (collectively, the “Inspectors”),
financial records, pertinent corporate documents and properties of the Company
(collectively, the “Records”) as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company’s
officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration statement.  Records which the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential


 


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shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a material misstatement or
omission in the registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction.  Each Holder selling
Registrable Securities further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
written notice to the Company, and allow the Company, at the Company’s expense,
to undertake appropriate action to prevent disclosure of the Records it deemed
confidential.  Each Holder of such
Registrable Securities further agrees that information obtained by it as a
result of such inspections which is deemed confidential by the Company shall
not be used by it, and it shall cause each of its Inspectors not to use such
confidential information as the basis for any market transactions in securities
of the Company or for any purpose other than any due diligence review with
respect to decisions regarding such Holder’s investment in the Registrable
Shares, unless and until such information is made generally available to the
public; and


 


(m)                               Notify
the Holders and the managing underwriters, if any, promptly, and (if requested
by any such Person) confirm such advice in writing, (i) when the
registration statement, the prospectus or any prospectus supplement or
post-effective amendment, has been filed, and, with respect to the registration
statement or any post-effective amendment, when the same has become effective,
(ii) of the issuance by the Commission of any stop order suspending or
threatening to suspend the effectiveness of a registration statement or of any
order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose and the Company shall promptly
use its best efforts to prevent the issuance of any stop order or to obtain a
withdrawal of such stop order should the order be issued and (iii) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a registration statement
of any of the Registrable Securities for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose.


 


10.                                 Indemnification.  In the event any Registrable Securities are
included in a registration statement filed pursuant to this Agreement.


 


(a)                                  To
the extent permitted by law, the Company will indemnify each Holder, each of
its officers, directors, and partners, and each person controlling such Holder
within the meaning of Section 15 of the Act, with respect to which
registration, qualification, or compliance has been effected pursuant to this
Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Act, against all
expenses, claims, losses, damages, or liabilities (whether joint or several and
including actions in respect thereof), including any of the foregoing incurred
in settlement of any litigation, commenced or threatened, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular, or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Act, the Exchange Act, any federal or state securities law or any rule or
regulation promulgated under the Act, the Exchange Act or any federal or state
securities law or regulation applicable to the Company in connection with any
such registration, qualification, or


 


11

















 


compliance, and the Company will reimburse each such Holder, each of
its officers, directors, partners, each person controlling such Holder, each
such underwriter and each person who controls such underwriter, for any legal
and any other expenses reasonably incurred in connection with the
investigating, preparing, or defending any such claim, loss, damage, liability,
or action; provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based solely on any untrue statement or omission or alleged untrue statement
or omission, made solely in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person, or underwriter and stated to be specifically for
use therein; and provided further, that the Company will not be liable to any
underwriter or any person who controls such underwriter for any claim, loss,
damage, liability or expense that arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission made in a
preliminary prospectus on file with the Securities and Exchange Commission at
the time the Registration Statement becomes effective or in the amended
prospectus filed with the Securities and Exchange Commission pursuant to
Rule 424(b) (the “Final Prospectus”) if a copy of the Final Prospectus was
not furnished to the person asserting the claim, loss, damage, liability or
expense at or prior to the time such action is required by the Act.


 


(b)                                 To
the extent permitted by law, each Holder will, if Registrable Securities held
by such Holder are included in the securities as to which such registration,
qualification, or compliance is being effected, and each other Company
stockholder whose securities are included in the securities as to which such
registration, qualification or compliance is being effected (“Other
Stockholder”) indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company’s securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Act, and each other such Holder and Other
Stockholder, each of its officers, directors, and partners and each person
controlling such Holder and Other Stockholder within the meaning of
Section 15 of the Act, against all claims, losses, damages and liabilities
(whether joint or several and including actions in respect thereof) arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such other
Holders, such Other Stockholders, such directors, officers, persons,
underwriters, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular, or other document in reliance upon and conformity with
written information furnished to the Company by an instrument duly executed by
such Holder or such Other Stockholder and stated to be specifically for use
therein; provided, however, that the indemnity agreement contained in this
subsection 10(b) shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if such settlement is effected without
the consent of the Holder or the Other Stockholder, which consent shall not be
unreasonably withheld; and provided further, that, in no event shall any
indemnity under this subsection 10(b) exceed the net proceeds (after
deducting any discounts or commissions received by any underwriter in
connection with such registration) from the offering received by such Holder or
such Other Stockholder; and provided further, that any such Holder or such
Other


 


12

















 


Stockholder will not be liable to any underwriter or any person who
controls such underwriter for any claim, loss, damage, liability or expense
that arises out of or is based upon any untrue statement or omission or alleged
untrue statement or omission made in the Final Prospectus if a copy of the
Final Prospectus was not furnished to the person asserting the claim, loss, damage,
liability or expense at or prior to the time such action is required by the
Act.


 


(c)                                  Each
party entitled to indemnification under this Section 10 (the “Indemnified
Party”) shall give notice to the party required to provide indemnification (the
“Indemnifying Party”) promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and shall permit
the Indemnifying Party to assume the defense of any such claim or litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party’s expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement except to the extent, but only to the extent, that the failure
to give such notice is materially prejudicial to an Indemnifying Party’s
ability to defend such action and provided further, that the Indemnifying Party
shall not assume the defense for matters as to which there is a conflict of
interest or separate and different defenses but shall bear the expense of such
defense nevertheless.  No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.


 


(d)                                 If
the indemnification provided for in this Section 10 is unavailable to or
unenforceable by the Indemnified Party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute
to the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages, liabilities and judgments in such proportions as is
appropriate to reflect the relative fault of the Indemnified Party in
connection with the actions or inactions which resulted in such losses, claims,
damages, liabilities and judgments, as well as any other relevant equitable
considerations (including the relative fault and indemnification or
contribution obligations of other relevant parties).  The relative fault of the Indemnifying Party on the one hand and
of the Indemnified Party on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party, and by such party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.  The Indemnified Persons agree that it would
not be just and equitable if contribution pursuant to this Section 10(d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph.  No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.  In no event shall any Holder or Other
Stockholder be liable for contribution pursuant to this Section 10(d) to
the extent the aggregate payments made by such Holder or Other Stockholder
pursuant to Section 10(b) and this Section 10(d)


 


13

















 


exceed the net proceeds (after deducting any discounts or commissions
received by an underwriter in connection with such registration) from the
offering received by such Holder or Other Stockholder.


 


(e)                                  The
obligations of the Company and the Holders under this Section 10 shall
survive the completion of any offering of Registrable Securities in a
registration statement pursuant to this Agreement.


 


11.                                 Information
by Holder.  The Holder or Holders of
Registrable Securities included in any registration shall furnish to the
Company such information regarding such Holder or Holders, the Registrable
Securities held by them, and the distribution proposed by such Holder or
Holders as the Company may request in writing and as shall be required in
connection with any registration, qualification, or compliance referred to in
this Agreement.


 


12.                                 Rule 144
Reporting.  With a view to making
available the benefits of certain rules and regulations of the Commission which
may at any time permit the sale of the Restricted Securities to the public
without registration, after such time as a public market exists for the Common
Stock of the Company, the Company agrees to use its best efforts to:


 


(a)                                  Make
and keep public information available, as those terms are understood and
defined Rule 144 under the Act, at all times after the effective date that
the Company becomes subject to the reporting requirements of the Act or the
Exchange Act.


 


(b)                                 File
with the Commission in a timely manner all reports and other documents required
of the Company under the Act and the Exchange Act; and


 


(c)                                  So
long as a Holder owns any Restricted Securities, to furnish to the Holder
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 (at any time after 90
days after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents of the Company and other information in the possession of or
reasonably obtainable by the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Holder
to sell any such securities without registration.


 


13.                                 Transfer
of Registration Rights.  The rights
to cause the Company to register securities granted to Holders under Sections
5, 6, and 7 may be assigned to a transferee or assignee in connection with any
transfer or assignment of Registrable Securities by a Holder of not less than
100,000 shares of Registrable Securities (subject to the limitations of Section
3), or to any transferee or assignee who is an affiliate or a constituent
partner of a Holder or the estate of such constituent partner, provided that
such transfer may otherwise be effected in accordance with applicable
securities laws, and notice of such transfer is provided promptly to the
Company.


 


14.                                 Market
Standoff Agreement.  Each Holder
agrees in connection with the Company’s initial public offering of securities,
upon request of the Company or the underwriters managing such offering of the
Company’s securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other


 


14

















 


than those Registrable Securities included in the registration and
other than transactions with affiliates of the Holder who shall agree to be
similarly bound) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed, in
any event, one hundred twenty (120) days) from the effective date of such
registration as may be requested by the underwriters; provided, however, that
the Holders shall have no such obligation under this paragraph 14 unless
the officers and directors and all holders of at least one percent (1%) of the
Company’s issued and outstanding capital stock shall also agree to such
restrictions.


 


15.                                 Limitations
on Registration of Resales of Securities. 
From and after the date of this Agreement, the Company shall not enter
into any agreement with any holder or prospective holder of any securities of
the Company giving such holder or prospective holder either (i) the right to
require the Company to initiate any registration of any securities of the
Company or (ii) the right to have its securities included in a registration by
the Company, the Holders pursuant to this Agreement or any other person or
entity if such right would permit the securities held by such holder or
perspective holder to be registered before all Registrable Securities that have
been requested to be included are included. 
The Company’s obligations set forth in the preceding sentence shall be
for a period of four years (plus the aggregate number of days that the Company
has delayed any registrations pursuant to its rights under
Section 5(a)(6)) following the effective date of the initial public
offering of the Company’s Common Stock registered under the Securities
Act.  This Section 15 shall not
limit the right of the Company to enter into any agreements with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder the right to require the Company, upon any registration of
any of its securities (except on initial public offering), to include, among
the securities which the Company is then registering, securities owned by such
holder so long as they are subject to all cutback and priority limitations of
this Agreement.


 


16.                                 Notices,
etc.  All notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed effectively given upon delivery to the party to be notified in person or
by courier service or five (5) days after deposit with the United States mail,
by registered or certified mail, postage prepaid, addressed (a) if to a
Holder of any Registrable Securities, to its address set forth on the Schedule
of Purchasers attached hereto or such address as such holder shall have
furnished the Company in writing, or (b) if to the Company, to:


 


Acorda
Therapeutics, Inc.

15 Skyline Drive

Hawthorne, NY  10532

Attn:  Chief Financial Officer


 


or at such other address as
the Company shall have furnished to the Holders in writing.


 


17.                                 Amendment.  Any provision of this Agreement may be
amended, waived or modified upon the written consent of (i) the Company
and (ii) holders of sixty percent or more of the outstanding shares of
Registrable Securities.  Any Holder may
waive any of its rights or the Company’s obligations hereunder without
obtaining the consent of any other person.


 


15

















 


18.                                 Suppression
of Earlier Agreement.  This
Agreement shall supersede in its entirety the Prior Agreement.  This agreement shall be effective
simultaneous with the closing of the initial sale of Series J Preferred
Stock by the Company, provided at such time Holders that hold sufficient shares
of Preferred Stock and shares of one or more series of Preferred Stock
sufficient to amend the Prior Agreement shall have executed and delivered a
signed counterpart of this Agreement.


 


19.                                 Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which together
shall constitute one instrument.


 


20.                                 Governing
Law.  This Agreement shall be
governed by the laws of the State of Delaware.


 


21.                                 Regulated
Financial Institutions Compliance Obligations.  Nothing in this agreement shall diminish the continuing
obligations of any financial institution to comply with applicable requirements
of law that it maintain responsibility for the disposition of, and control over
its admitted assets, investments and property, including (without limiting the
generality of the foregoing) the provisions of Section 1141(b) of the
New York Insurance Law, as amended, and as hereinafter from time to time
in effect.


 


22.                                 Listing.  If the Common Stock is listed for trading on
any national securities exchange, that listing shall include all Registrable
Securities of the Holders (to the extent permitted by the rules of the
exchange).


 


23.                                 Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, that provision will be
ineffective only to the extent of the prohibition or invalidity, without
invalidating the remainder of this Agreement.


 


24.                                 Specific
Performance.  Each of the parties
agrees that damages for a breach of or default under this Agreement would be
inadequate and that in addition to all other remedies available at law or in
equity the parties and their successors and assigns shall be entitled to
specific performance on injunctive relief, or both, in the event of a breach or
a threatened breach of this Agreement.


 


25.                                 Validity
of Provisions.  Should any part of
this Agreement for any reason be declared by any court of competent
jurisdiction to be invalid, that decision shall not affect the validity of the
remaining portion, which shall continue in full force and effect as if this
Agreement had been executed with the invalid portion eliminated, it being the
intent of the parties that they would have executed the remaining portion of
the Agreement without including any part or portion that may for any reason be
declared invalid.


 


26.                                 Waiver
of Breach.  Neither any waiver of
any breach of, nor any failure to enforce any term or condition of, this
Agreement shall operate as a waiver of any other breach of any term or
condition, nor constitute nor be deemed a waiver or release of any other
rights, in law or at equity, or claims that any party may have against any
other party for anything arising


 


16

















 


out of, connected with, or based upon this Agreement.  No waiver shall be enforceable against any
party hereto unless set forth in a written instrument or agreement signed by
that party.  No waiver shall be deemed
to occur as a result of the failure of any party to enforce any term or
condition of this Agreement.


 


17

















 


IN WITNESS WHEREOF, the undersigned have executed this
Fifth Amended and Restated Registration Rights Agreement as of the date first
set forth above.


 


	
   

  	
   

  	
  “Company”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Acorda
  Therapeutics, Inc.

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Ron Cohen, M.D.,
  President and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “Holders”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Print
  Name of Holder)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Signatory)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Print
  Name of Signatory)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Title
  of Signatory)

  
							



 


18

















 


SCHEDULE
OF PURCHASERS


 


 




	
  Names and Addresses

  	
   

  	
  Names and Addresses