exv4w1






Exhibit 4.1




STOCKHOLDER TENDER AND SUPPORT AGREEMENT




     This Stockholder Tender and Support Agreement dated as of November 25, 2008 (this “Agreement”)
is among each of the individuals or entities listed on a signature page hereto (each, a
“Stockholder”) and HOFFMANN-LA ROCHE INC., a New Jersey corporation (“Parent”). Capitalized terms
used but not defined herein have the meanings assigned to them in the Agreement and Plan of Merger
dated as of the date of this Agreement (the “Merger Agreement”) among Parent, 900 NORTH POINT
ACQUISITION CORPORATION, a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger
Subsidiary”), and MEMORY PHARMACEUTICALS CORP., a Delaware corporation (the “Company”).



     WHEREAS, each Stockholder beneficially owns (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) shares of common stock, $0.001 par value, of the Company
(“Shares”) or options and/or warrants to purchase Shares;



     WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Merger
Subsidiary and the Company are entering into the Merger Agreement, which provides for, among other
things, the making of a tender offer by Merger Subsidiary for all of the outstanding Shares and the
merger of Merger Subsidiary with and into the Company, upon the terms and subject to the conditions
set forth therein; and



     WHEREAS, as a condition to Parent’s willingness to enter into the Merger Agreement, Parent has
required that each Stockholder enter into this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations,
warranties and agreements set forth herein, and intending to be legally bound, the parties hereby
agree as follows:



     SECTION
1. Agreement to Tender. Each Stockholder hereby agrees to validly tender or cause
to be tendered in the Offer any and all Shares currently beneficially owned by such Stockholder
(excluding for purposes of this Section 1 any Shares that are the subject of unexercised Company
Stock Options or Company Warrants) and any additional Shares with respect to which such Stockholder
becomes the beneficial owner (including, without limitation, whether by purchase, by the exercise
of Company Stock Options or Company Warrants or otherwise) after the date of this Agreement
(collectively, but excluding any shares that are disposed of in compliance with Section 8(b), the
“Subject Shares”) pursuant to and in accordance with the terms of the Offer no later than seven (7)
Business Days after the receipt by such Stockholder of all documents or instruments required to be
delivered pursuant to the terms of the Offer, including but not limited to the letter of
transmittal in the case of certificated Subject Shares.



 









 




In furtherance of the foregoing, at the time of such tender, each Stockholder shall (i)
deliver to the depositary designated in the Offer (the “Depositary”) (A) a letter of transmittal
with respect to its Subject Shares complying with the terms of the Offer, (B) a certificate or
certificates representing such Subject Shares or an “agent’s message” (or such other evidence, if
any, of transfer as the Depositary may reasonably request) in the case of a book-entry transfer of
any Subject Shares and (C) all other documents or instruments, to the extent applicable, required
to be delivered by other stockholders of the Company pursuant to the terms of the Offer, and/or
(ii) instruct its broker or such other Person that is the holder of record of any Subject Shares to
tender such Subject Shares pursuant to and in accordance with the terms of the Offer. Each
Stockholder agrees that once its Subject Shares are tendered, such Stockholder will not withdraw or
cause to be withdrawn any of such Subject Shares from the Offer, unless and until this Agreement
shall have been terminated in accordance with Section 13(d). If the Offer is terminated by Parent
or Merger Subsidiary, or this Agreement is terminated in accordance with its terms, Parent and
Merger Subsidiary shall cause the depository acting on behalf of Parent and Merger Subsidiary to
return all tendered Shares to the Stockholders promptly.




     SECTION 2. Documentation and Information. Each Stockholder (i) consents to and authorizes
the publication and disclosure by Parent of such Stockholder’s identity and holding of Subject
Shares, the nature of such Stockholder’s commitments, arrangements and understandings under this
Agreement (including, for the avoidance of doubt, the disclosure of this Agreement) and any other
information, in each case, that Parent reasonably determines is required to be disclosed by
Applicable Law in any press release, the Offer Documents, the Company Proxy Statement (if approval
of the Company’s stockholders is required under Delaware Law), including all schedules and
documents filed with the SEC, or any other disclosure document in connection with the Offer, the
Merger and any transactions contemplated by the Merger Agreement and (ii) agrees promptly to give
to Parent any information it may reasonably require for the preparation of any such disclosure
documents. Each Stockholder agrees to promptly notify Parent of any required corrections with
respect to any information supplied by such Stockholder specifically for use in any such disclosure
document, if and to the extent that any such information shall have become false or misleading in
any material respect.



     SECTION 3. Voting Agreement. Each Stockholder agrees that if such Stockholder’s Subject
Shares have not been previously accepted for payment pursuant to the Offer, such Stockholder hereby
agrees that at any meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of the holders of Shares, however called (each, a “Company Stockholders Meeting”), or in
connection with any written consent of the holders of Shares, such Stockholder shall, unless Parent
votes the Shares directly pursuant to the proxy granted by Section 4 below, vote (or cause to be
voted) or deliver a written



2









 




consent (or cause a written consent to be delivered) with respect to all such Stockholder’s
Subject Shares, in each case, to the fullest extent that such Subject Shares are entitled to be
voted at the time of any vote or action by written consent:




     (a) in favor of (i) the adoption of the Merger Agreement and (ii) without limitation of the
preceding clause (i), the approval of any proposal to adjourn or postpone the Company Stockholders
Meeting to a later date if there are not sufficient votes for adoption of the Merger Agreement on
the date on which the Company Stockholders Meeting is held; and



     (b) against any action or agreement that would reasonably be expected to materially impede,
hinder, interfere with, prevent, delay or adversely affect the consummation of the transactions
contemplated by the Merger Agreement, including, but not limited to, any agreement or arrangement
related to an Acquisition Proposal.



     Subject to the proxy granted under Section 4 below, each Stockholder shall retain at all times
the right to vote the Subject Shares in such Stockholder’s sole discretion and without any other
limitation on those matters other than those set forth in Sections 3(a) and 3(b) that are at any
time or from time to time presented for consideration to the Company’s stockholders generally.



     SECTION 4. Irrevocable Proxy. Each Stockholder hereby irrevocably appoints Parent as
attorney-in-fact and proxy for and on behalf of such Stockholder, for and in the name, place and
stead of such Stockholder, to:



     (a) attend any and all Company Stockholder Meetings;



     (b) vote, express consent or dissent or issue instructions to the record holder to vote such
Stockholder’s Subject Shares in accordance with the provisions of Section 3 at any such meeting;
and



     (c) grant or withhold, or issue instructions to the record holder to grant or withhold, in
accordance with the provisions of Section 3, all written consents with respect to the Subject
Shares.



     The foregoing proxy shall be deemed to be a proxy coupled with an interest, is irrevocable
(and as such shall survive and not be affected by the death, incapacity, mental illness or insanity
of such Stockholder) until the end of the Agreement Period (as defined below) and shall not be
terminated by operation of Applicable Law or upon the occurrence of any other event other than the
termination of this Agreement pursuant to Section 13(d). Each Stockholder authorizes such attorney
and proxy to substitute any other Person to act hereunder, to revoke any substitution and to file
this proxy and any substitution or revocation with the Secretary of the Company. Each Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 4 is given in connection with
and



3









 




granted in consideration of and as an inducement to Parent entering into the Merger Agreement
and that such irrevocable proxy is given to secure the obligations of the Stockholder under Section
3 hereof. Parent covenants and agrees with each Stockholder that Parent will exercise the
foregoing proxy consistent with the provisions of Section 3 hereof.




     SECTION 5. Representations and Warranties of Each Stockholder. Each Stockholder, severally
but not jointly as to any other Stockholder, represents and warrants to Parent as follows (it being
understood that, except where expressly stated to be given or made as of the date hereof only, the
representations and warranties contained in this Section 5 shall be made as of the date hereof, as
of the Acceptance Date and, if such Stockholder’s Subject Shares have not been previously accepted
for payment pursuant to the Offer, as of the date of each Company Stockholders Meeting):



     (a) Organization. If such Stockholder is not an individual, it is duly organized and validly
existing and in good standing under the laws of the jurisdiction of its organization.



     (b) Authorization. If such Stockholder is not an individual, it has full corporate, limited
liability company, partnership or trust power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. If such Stockholder is an individual, such Stockholder
has full legal capacity, right and authority to execute and deliver this Agreement and to perform
such Stockholder’s obligations hereunder. If such Stockholder is not an individual, the execution,
delivery and performance by such Stockholder of this Agreement and the consummation by such
Stockholder of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Stockholder. This Agreement has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding obligation of such Stockholder
(subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws affecting creditors’ rights generally and general principles of equity).



     (c) No Violation.




     (i) The execution and delivery of this Agreement by such Stockholder does not, and
the performance by such Stockholder of such Stockholder’s obligations hereunder will not,
(A) if such Stockholder is not an individual, contravene, conflict with, or result in any
violation or breach of any provision of its articles of incorporation, bylaws or similar
organizational documents, (B) assuming compliance with the matters referred to in Section
5(c)(ii), contravene, conflict with, or result in a violation or breach of any provision
of Applicable Law or any judgment, injunction, order or decree of any Governmental
Authority with competent jurisdiction or (C) constitute a default, or an event that, with
or without



4









 







notice or lapse of time or both, could become a default, under, or cause or permit
the termination, cancellation, acceleration or other change of any right or obligation or
the loss of any benefit to which such Stockholder is entitled under any provision of any
agreement or other instrument binding upon such Stockholder, except, in the case of
clauses (B) and (C), for such matters as would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on such Stockholder’s ability
to perform its obligations under this Agreement.




     (ii) No consent, approval, order, authorization or permit of, or registration,
declaration or filing with or notification to, any Governmental Authority or any other
Person is required by or with respect to such Stockholder in connection with the execution
and delivery of this Agreement by such Stockholder or the performance by such Stockholder
of such Stockholder’s obligations hereunder, except for the filing with the SEC of any
Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 of
the 1934 Act as may be required in connection with this Agreement and the transactions
contemplated hereby and except for any actions or filings the absence of which would not
reasonably be expected to have, individually or in the aggregate, a material adverse
effect on such Stockholder’s ability to perform its obligations under this Agreement.



     (d) Ownership of Subject Shares. As of the date hereof, such Stockholder is, and (except with
respect to any Subject Shares Transferred in accordance with Section 8(b) hereof or accepted for
payment pursuant to the Offer) at all times during the Agreement Period will be, the beneficial
owner of such Stockholder’s Subject Shares with no restrictions on such Stockholder’s rights of
disposition pertaining thereto, except for any applicable restrictions on Transfer under the 1933
Act. Except to the extent of any Subject Shares acquired after the date hereof (which shall become
Subject Shares upon that acquisition), the number of Shares set forth on Schedule A opposite the
name of such Stockholder are the only Shares beneficially owned by such Stockholder on the date of
this Agreement. Other than the Subject Shares and any Shares that are the subject of unexercised
Company Stock Options and Company Warrants held by such Stockholder (the number of which is set
forth opposite the name of such Stockholder on Schedule A), such Stockholder does not own any
Shares or any options to purchase or rights to subscribe for or otherwise acquire any securities of
the Company and has no interest in or voting rights with respect to any securities of the Company.



     (e) Proxy. None of such Stockholder’s Subject Shares are subject to any voting agreement on
the date of this Agreement, except pursuant to this Agreement. Such Stockholder further represents
that any proxies heretofore given in respect of the Subject Shares, if any, are revocable, and
hereby revokes such proxies.



5









 





     (f) Absence of Litigation. With respect to such Stockholder, as of the date hereof, there is
no action, suit, investigation or proceeding pending against, or, to the knowledge of such
Stockholder, threatened against or otherwise affecting, such Stockholder or any of its or his
properties or assets (including such Stockholder’s Subject Shares) that could reasonably be
expected to impair the ability of such Stockholder to perform his or its obligations hereunder or
to consummate the transactions contemplated hereby on a timely basis.



     (g) Reliance. Such Stockholder understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon such Stockholder’s execution, delivery and performance of this
Agreement.



     (h) Finders’ Fees. No investment banker, broker, finder or other intermediary is entitled to
a fee or commission from Parent or the Company in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder in his capacity as such.



     SECTION 6. Representations and Warranties of Parent and Merger Subsidiary. Each of Parent
and Merger Subsidiary, jointly and severally, hereby represents and warrants, as of the date hereof
and as of the Acceptance Date, to the Stockholders as follows:



     (a) Authorization; Validity of Agreement; Necessary Action. Each of Parent and Merger
Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all corporate power and authority to carry on its
business as now conducted. The execution, delivery and performance by Parent and Merger Subsidiary
of this Agreement and the consummation by Parent and Merger Subsidiary of the transactions
contemplated hereby are within the corporate powers of Parent and Merger Subsidiary and have been
duly authorized by all necessary corporate action. This Agreement constitutes a valid and binding
agreement of each of Parent and Merger Subsidiary, enforceable against Parent and Merger Subsidiary
in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws affecting creditors’ rights generally and general
principles of equity).



     (b) Governmental Authorization. The execution, delivery and performance by Parent and Merger
Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the
transactions contemplated hereby require no action by or in respect of, or filing with, any
Governmental Authority, other than (i) the filing of a certificate of merger with respect to the
Merger with the Delaware Secretary of State and appropriate documents with the relevant authorities
of other states in which Parent is qualified to do business, (ii) compliance with any applicable
requirements of the 1933 Act, the 1934 Act and any other state or federal securities laws, and
(iii) any actions or filings the absence of which would not have, individually or in the aggregate,
a material
adverse effect on the ability of Parent and Merger Subsidiary to perform their obligations
under this Agreement.



6









 





     (c) Non-Contravention. The execution, delivery and performance by Parent and Merger
Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the
transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in
any violation or breach of any provision of the certificate of incorporation or bylaws of Parent or
Merger Subsidiary, (ii) assuming compliance with the matters referred to in Section 6(b),
contravene, conflict with, or result in a violation or breach of any provision of any Applicable
Law, (iii) assuming compliance with the matters referred to in Section 6(b), require any consent or
other action by any Person under, constitute a default, or an event that, with or without notice or
lapse of time or both, would constitute a default, under, or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation or the loss of any benefit to
which Parent or any of its Subsidiaries is entitled under any provision of any agreement or other
instrument binding upon Parent or any of its Subsidiaries or any license, franchise, permit,
certificate, approval or other similar authorization affecting, or relating in any way to, the
assets or business of the Parent and its Subsidiaries or (iv) result in the creation or imposition
of any Lien on any asset of the Parent or any of its Subsidiaries, with only such exceptions, in
the case of each of clauses (ii) through (iv), as would not have, individually or in the aggregate,
a material adverse effect on the ability of Parent and Merger Subsidiary to perform their
obligations under this Agreement.



     SECTION 7. Acquisition Proposals. Each Stockholder hereby agrees that neither it nor any of
its affiliated investment funds or vehicles shall, nor shall such Stockholder or any of its
affiliated investment funds or vehicles authorize or permit any of its or their officers, directors
or employees to, and each Stockholder shall use its reasonable best efforts to cause its and its
affiliated investment funds and vehicles respective investment bankers, attorneys, accountants,
consultants or other agents or advisors, acting on behalf of such Stockholder, not to, directly or
indirectly, (i) submit, solicit, initiate or take any action to knowingly facilitate or encourage
the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or
negotiations regarding an Acquisition Proposal, or furnish any information relating to the Company
or any of its Subsidiaries or afford access to the business, properties, assets, books or records
of the Company or any of its Subsidiaries to any Third Party that is seeking (to the knowledge of
such Stockholder) to make, or has made, an Acquisition Proposal or (iii) enter into any agreement
in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition
agreement, option agreement or other similar instrument relating to an Acquisition Proposal.
Notwithstanding the foregoing, each Stockholder and its representatives shall be permitted to make
proposals, engage in discussions, negotiate terms, and work on documents with the Company regarding
a Covered Equity Investment to the extent that the Company



7









 




is permitted to engage in such discussions with such Stockholder pursuant to Section 7.04(g)
of the Merger Agreement. Each Stockholder agrees that it shall not suggest or encourage any
portfolio company of such Stockholder or any of its affiliated investment funds or vehicles (or any
of such portfolio company’s investment bankers, attorneys, accountants, consultants or other
advisors) to take any action that such Stockholder is not permitted to take pursuant to this
Section 7.




     SECTION 8. No Proxies for or Encumbrances on Subject Shares.



     (a) Except pursuant to the terms of this Agreement, during the Agreement Period, no
Stockholder shall (nor permit any Person under such Stockholder’s control to), without the prior
written consent of Parent, directly or indirectly, (i) grant any proxies, powers of attorney,
rights of first offer or refusal or enter into any voting trust, (ii) sell (including short sell),
assign, transfer, tender, pledge, encumber, grant a participation interest in, hypothecate or
otherwise dispose of (including by gift) (each, a “Transfer”), (iii) otherwise permit any Liens to
be created on, or (iv) enter into any contract, agreement, option, instrument or other arrangement
or understanding with respect to the direct or indirect Transfer of, any Subject Shares. No
Stockholder shall, and shall not permit any Person under such Stockholder’s control or any of its
or their respective representatives to, seek or solicit any such Transfer or any such contract,
agreement, option, instrument or other arrangement or understanding.



     (b) Notwithstanding the foregoing, each Stockholder shall have the right to Transfer all or
any portion of its or his Subject Shares to a Permitted Transferee of such Stockholder if and only
if such Permitted Transferee shall have agreed in writing, in a manner reasonably acceptable in
form and substance to Parent, (i) to accept such Subject Shares subject to the terms and conditions
of this Agreement and (ii) to be bound by this Agreement and to agree and acknowledge that such
Person shall constitute a Stockholder for all purposes of this Agreement. “Permitted Transferee”
means, with respect to any Stockholder, (A) any other Stockholder, (B) a spouse, lineal descendant
or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted
child, grandchild or adopted grandchild of such Stockholder, (C) any trust, the trustees of which
include only the Persons named in clauses (A) or (B) and the beneficiaries of which include only
the Persons named in clauses (A) or (B), (D) any corporation, limited liability company or
partnership, the stockholders, members or general or limited partners of which include only the
Persons named in clauses (A) or (B), or (E) if such Stockholder is a trust, the beneficiary or
beneficiaries authorized or entitled to receive distributions from such trust.



     (c) Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to
prevent the Transfer of any Subject Shares on the books of the Company in violation of this
Agreement.



8









 





     SECTION 9. Waiver of Appraisal Rights. Each Stockholder hereby irrevocably waives any and
all rights such Stockholder may have as to appraisal, dissent or any similar or related matter with
respect to any of such Stockholder’s Subject Shares that may arise with respect to the Merger or
any of the transactions contemplated by the Merger Agreement, including, without limitation, under
Section 262 of Delaware Law.



     SECTION 10. Notices of Certain Events. Each Stockholder shall notify Parent of any
development occurring after the date hereof that causes, or that would reasonably be expected to
cause, any breach of any of the representations and warranties of such Stockholder set forth in
Section 5. Parent shall notify each Stockholder of any development occurring after the date
hereof that causes, or that would reasonably be expected to cause, any breach of any of the
representations and warranties of Parent set forth in Section 6.



     SECTION 11. Further Assurances. Parent and each Stockholder will each execute and deliver,
or cause to be executed and delivered, all further documents and instruments and use their
respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary, proper or advisable under Applicable Laws and regulations, to
perform their respective obligations under this Agreement.



     SECTION 12. Certain Adjustments. In the event of a stock split, stock dividend or
distribution, or any change in the Shares by reason of a stock split, reverse stock split,
recapitalization, combination, reclassification, readjustment, exchange of shares or the like, the
term “Subject Shares” shall be deemed to refer to and include such shares as well as all such stock
dividends and distributions and any securities into which or for which any or all of such shares
may be changed or exchanged.



     SECTION 13. Miscellaneous.



     (a) Notices. All notices, requests and other communications to any party hereunder shall be
in writing (including facsimile transmission) and shall be given,



     If to Parent:


Hoffmann-La Roche Inc.

340 Kingsland Street

Nutley, NJ 07110

Attention: General Counsel

Facsimile No.: (973) 235-3500




     with a copy to:



9









 




Davis Polk & Wardwell

450 Lexington Avenue

New York, NY 10017

Attention: Marc O. Williams

Facsimile No.: (212) 450-3800




     If to a Stockholder, to his, her or its address set forth on a signature page hereto, with a
copy to:


Covington & Burling LLP

The New York Times Building

620 Eighth Avenue

New York, NY 10018-1405

Attention: J. D. Weinberg

                Ellen B. Corenswet

Facsimile No.: (212) 841-1010



and/or to such other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient thereof if received prior to 5
p.m. on a business day in the jurisdiction in which such notice is received. Otherwise, any such
notice, request or communication shall be deemed to have been received on the next succeeding
business day in the jurisdiction in which such notice is received.




     (b) Amendment and Waivers.




     (i) Any provision of this Agreement may be amended or waived during the Agreement
Period if, but only if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective.




     (ii) No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by Applicable Law.



     (c) Binding Effect; Benefit; Assignment.




     (i) The provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns. No provision
of this Agreement is intended to confer any rights, benefits, remedies, obligations or
liabilities hereunder
upon any Person other than the parties hereto and their respective successors and
assigns.



10









 






     (ii) Neither any Stockholder, on the one hand, nor Parent, on the other hand, may
assign this Agreement or any of his or its rights, interests or obligations hereunder
(whether by operation of Applicable Law or otherwise) without the prior written approval
of Parent or such Stockholder, as applicable, except that Parent may transfer or assign
its rights and obligations under this Agreement, in whole or from time to time in part, to
one or more of its Affiliates at any time; provided that such transfer or assignment shall
not relieve Parent of its obligations under this Agreement.



     (d) Termination. This Agreement shall automatically terminate and become void and of no
further force or effect on the earlier of (i) the Effective Time, (ii) the termination of this
Agreement by written notice from Parent to the Stockholders, (iii) the termination of the Merger
Agreement, (iv) the occurrence of an Adverse Recommendation Change and (v) the termination of the
Offer or any amendment, modification, change or waiver to the terms of the Offer that results in
any decrease in the Offer Price or any change in the form of consideration to be used to purchase
Shares (the period from the date hereof through such time being referred to as the “Agreement
Period”); provided that (A) Sections 13(a), 13(b), 13(e), 13(h) and 13(n) shall survive such
termination and (B) no such termination shall relieve or release any Stockholder or Parent from any
obligations or liabilities arising out of his or its breach of this Agreement prior to its
termination.



     (e) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.




     (i) This Agreement shall be governed by and construed in accordance with the law of
the State of Delaware, without regard to the conflicts of law rules of such state.




     (ii) The parties hereto agree that any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby (whether brought by any party or any of
its Affiliates or against any party or any of its Affiliates) shall be brought in the
Delaware Chancery Court or, if such court shall not have jurisdiction, any federal court
located in the State of Delaware or other Delaware state court, and each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding brought in any such court



11









 







has been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 13(a) shall be deemed effective
service of process on such party.




     (iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.



     (f) Severability. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction or other Governmental Authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.



     (g) Specific Performance. The parties hereto agree that irreparable damage would occur if any
provision of this Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or
to enforce specifically the performance of the terms and provisions hereof in any federal court
located in the State of Delaware or any Delaware state court, in addition to any other remedy to
which they are entitled at law or in equity.



     (h) Expenses. All costs and expenses incurred in connection with this Agreement shall be paid
by or on behalf of the party incurring such cost or expense.



     (i) Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by all of the other parties hereto. Until and unless
each party has received a counterpart hereof signed by the other party hereto, this Agreement shall
have no effect and no party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication).



12









 





     (j) Entire Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter hereof.



     (k) Headings. The Section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this Agreement.



     (l) Interpretation. Any reference to any national, state, local or foreign law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless the context
otherwise requires. When a reference is made in this Agreement to Sections or Schedules, such
reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.
Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” In this Agreement, the holder of any
Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in
their capacities as such trustees, in each case as the context may require to be most protective of
Parent, including for purposes of such trustees’ representations and warranties as to the proper
organization of the trust, their power and authority as trustees and the non-contravention of the
trust’s governing instruments.



     (m) No Presumption. This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or causing any instrument
to be drafted.



     (n) Obligations. The obligations of each Stockholder under this Agreement are several and not
joint, and no Stockholder shall have any liability or obligation under this Agreement for any
breach hereunder by any other Stockholder.



     (o) Stockholder Capacity. Each Stockholder is signing and entering this Agreement solely in
his capacity as the beneficial owner of Subject Shares, and nothing herein shall limit or affect in
any way any actions that may be hereafter taken by him in his capacity as an employee, officer or
director of the Company or any Subsidiary of the Company.



     (p) Non-Survival of Representations and Warranties. None of the representations and
warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Effective Time.



[The next page is the signature page]




13









 





     The parties hereto have executed this Tender and Support Agreement as of the date first
written above.



	 	 	 	 	 
	 	HOFFMANN-LA ROCHE INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	  	 
	 	 	Title:  	  	 



[Stockholder Signatures Begin on the Next Page]





14









 





	 	 	 	 	 
	 	STOCKHOLDER

 	 
	 	By:  	
 	 
	 	 	Name:  		 
	 	 	 	 
	 
	 	Address:

	 



[Tender and Support Agreement – Stockholder Signature Page]





15









 








SCHEDULE A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Number of	 	Number of
	 	 	Number of	 	Shares Subject	 	Shares Subject
	 	 	Shares	 	to Unexercised	 	to Unexercised
	 	 	Beneficially	 	Company Stock	 	Company
	Name	 	Owned1	 	Options	 	Warrants
	Paul Blake
	 	 		 	 	 		 	 	 		 
	Anthony B. Evnin
	 	 		 	 	 		 	 	 		 
	Jonathan J. Fleming
	 	 		 	 	 		 	 	 		 
	Walter Gilbert
	 	 		 	 	 		 	 	 		 
	Vaughn M. Kailian
	 	 		 	 	 		 	 	 		 
	Robert I. Kriebel
	 	 		 	 	 		 	 	 		 
	David A. Lowe
	 	 		 	 	 		 	 	 		 
	Michael E. Meyers
	 	 		 	 	 		 	 	 		 
	James R. Sulat
	 	 		 	 	 		 	 	 		 
	Keyes Sulat Trust
	 	 		 	 	 		 	 	 		 
	Peter Young
	 	 		 	 	 		 	 	 		 
	Jzaneen Lalani
	 	 		 	 	 		 	 	 		 
	Stephen R. Murray
	 	 		 	 	 		 	 	 		 
	Michael P. Smith
	 	 		 	 	 		 	 	 		 
	MPM Asset
Management Investors BV4 LLC
	 	 		 	 	 		 	 	 		 
	MPM BioVentures IV
GmbH & Co. Beteiligungs KG
	 	 		 	 	 		 	 	 		 







42









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Number of	 	Number of
	 	 	Number of	 	Shares Subject	 	Shares Subject
	 	 	Shares	 	to Unexercised	 	to Unexercised
	 	 	Beneficially	 	Company Stock	 	Company
	Name	 	Owned1	 	Options	 	Warrants
	MPM BioVentures
IV-QP, L.P.
	 	 		 	 	 		 	 	 		 
	Oxford Bioscience
Partners IV L.P.
	 	 		 	 	 		 	 	 		 
	mRNA Fund II L.P.
	 	 		 	 	 		 	 	 		 
	Oxford Bioscience
Partners II L.P.
	 	 		 	 	 		 	 	 		 
	Oxford Bioscience
Partners (Bermuda) II L.P.
	 	 		 	 	 		 	 	 		 
	Oxford Bioscience
Partners (Adjunct) II L.P.
	 	 		 	 	 		 	 	 		 
	Oxford Bioscience
Partners (GS-Adjunct) II L.P.
	 	 		 	 	 		 	 	 		 
	Oxford Bioscience
Partners II (Annex) L.P.
	 	 		 	 	 		 	 	 		 
	Venrock Associates
	 	 		 	 	 		 	 	 		 
	Venrock
Associates II, L.P.
	 	 		 	 	 		 	 	 		 
	Venrock
Entrepreneurs Fund, L.P.
	 	 	 	 	 	 	 	 	 	 	 	 
	Totals:
	 	 	24,221,466	 	 	 	4,983,630	 	 	 	1,539,903	 









 




			
	1	 	Does not include shares subject to options or warrants
exercisable within 60 days, which shares are included in the columns listing
options and warrants.






43