EX-10.2






Exhibit 10.2




SECURITIES PURCHASE AGREEMENT




This Securities Purchase Agreement, dated as of December 19, 2005 (this
“Agreement”), between Memory Pharmaceuticals Corp., a Delaware corporation (the
“Company”), and The Stanley Medical Research Institute, a nonprofit organization (the
“Purchaser”).



Introduction




The Company and the Purchaser are executing and delivering this Agreement in reliance upon the
exemption from securities registration afforded by Section 4(2) of the Securities Act.



The Purchaser desires to purchase and the Company desires to sell, upon the terms and
conditions stated in this Agreement, $960,000 of the Company’s common stock, par value $.001 per
share (the “Common Stock”), and warrants to purchase Common Stock of the Company.



The capitalized terms used herein and not otherwise defined have the meanings given them in
Article 7.



In consideration of the premises and the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company
and the Purchaser hereby agree as follows:



ARTICLE I

Purchase and Sale of Securities




Section 1.1 Purchase and Sale of Securities. At the Closing, the Company will issue and sell
to the Purchaser, and the Purchaser will purchase from the Company, 440,367 shares of Common Stock
(the “Shares”) and 154,128 warrants (the “Warrants”) to purchase shares of Common Stock (the
Shares, the Warrants and the Warrant Shares (as defined below) are referred to collectively as the
“Securities”). The total purchase price for the Securities shall be $960,000 (the “Purchase
Price”). The purchase price for each Share and the related Warrant shall be $2.18 , which is the
sum of (i) $2.13, the closing bid price of the Common Stock as reported on Nasdaq (symbol “MEMY”),
as the 4:00 p.m., EST, closing bid price on the date hereof (the “Stock Purchase Price”), and (ii)
$0.05. For each one Share purchased by the Purchaser, such Purchaser shall receive a Warrant to
purchase 0.35 of a share of Common Stock at an exercise price per share equal to $2.62, which
represents 120% of the Stock Purchase Price, pursuant to a Warrant substantially in the form
attached as Exhibit A hereto.



Section 1.2 Payment. At the Closing, the Purchaser will pay the aggregate Purchase Price by
check payable to the order of the Company. At or promptly following the Closing, the Company will
instruct its transfer agent to deliver a stock certificate(s) to the Purchasers representing the
Shares and will deliver a Warrant(s) to purchase the Warrant Shares against delivery of the
Purchase Price on the Closing Date.



Section 1.3 Closing Date. The closing of the transaction contemplated by this Agreement will
take place on the date of this Agreement or such other date as the parties may agree (the “Closing
Date”) and the closing (the “Closing”) will be held at the offices of Covington & Burling, 1330
Avenue of the Americas, New York, New York 10019, or at such other time and place as shall be
agreed upon by the Company and the Purchaser.



ARTICLE II

Representations and Warranties of the Company




The Company hereby represents and warrants to the Purchaser that:



Section 2.1 Organization and Qualification. The Company is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, with corporate power and
authority to conduct its business as currently conducted as disclosed in the SEC Documents. The
Company is duly qualified to do business and is in good standing in every jurisdiction in which the
nature of the business conducted by it or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may be, would not
reasonably be expected to have a Material Adverse Effect.



Section 2.2 Authorization; Enforcement. The Company has all requisite corporate power and
authority to enter into and to perform its obligations under this Agreement, to consummate the
transactions contemplated hereby and to issue the Securities in accordance with the terms hereof.
The execution, delivery and performance of this Agreement by the Company and the consummation by it
of the transactions contemplated hereby (including the issuance of the Securities) have been duly
authorized by the Company’s Board of Directors and no further consent or authorization of the
Company, its Board of Directors, or its stockholders is required. This Agreement has been duly
executed by the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, or moratorium or similar laws
affecting creditors’ and contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity and except as rights to indemnity and contribution may be
limited by state or federal securities laws or public policy underlying such laws.



Section 2.3 Capitalization. The authorized capital stock of the Company, as of September 30,
2005, consisted of 100,000,000 shares of Common Stock, of which 37,213,883 shares were issued and
outstanding, and 5,000,000 shares of blank check Preferred Stock, $0.001 par value per share, none
of which have been designated. All of the issued and outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable. Options and warrants to
purchase an aggregate of 9,768,181 shares of Common Stock were outstanding as of September 30,
2005. Except as disclosed in or contemplated by the SEC Documents or this Agreement, the Company
does not have outstanding any options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any such options, rights, convertible
securities or obligations other than options granted under the Company’s stock option plans and its
employee stock purchase plan. The Company’s Second Amended and Restated Certificate of
Incorporation, as amended (the “Certificate of Incorporation”), as in effect on the date hereof,
and the Company’s Amended and Restated Bylaws (the “Bylaws”) as in effect on the date hereof, are
each filed as exhibits to the SEC Documents.



Section 2.4 Issuance of Securities. The Shares and all of the shares of Common Stock issuable
upon exercise of the Warrants (the “Warrant Shares”) are duly authorized and, upon issuance in
accordance with the terms of this Agreement (and in case of the Warrant Shares, the Warrants), will
be validly issued, fully paid and non-assessable and will not be subject to preemptive rights or
other similar rights of stockholders of the Company.



Section 2.5 No Conflicts; Government Consents and Permits.




(a) The execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby (including the issuance
of the Securities) will not (i) conflict with or result in a violation of any provision of
its Certificate of Incorporation or Bylaws or require the approval of the Company’s
stockholders, (ii) violate or conflict with, or result in a breach of any provision of, or
constitute a default under, any agreement, indenture, or instrument to which the Company is
a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or
decree (including United States federal and state securities laws and regulations and
regulations of any self-regulatory organizations to which the Company or its securities are
subject) applicable to the Company, except in the case of clauses (ii) and (iii) only, for
such conflicts, breaches, defaults, and violations as would not reasonably be expected to
have a Material Adverse Effect.




(b) The Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency or any regulatory or
self regulatory agency in order for it to execute, deliver or perform any of its obligations
under this Agreement in accordance with the terms hereof, or to issue and sell the
Securities in accordance with the terms hereof other than such as have been made or
obtained, and except for the registration of the Shares and Warrant Shares under the
Securities Act pursuant to Section 6 hereof, any filings required to be made under federal
or state securities laws, and any required filings or notifications regarding the issuance
or listing of additional shares with Nasdaq.




(c) The Company has all franchises, permits, licenses, and any similar authority
necessary for the conduct of its business as now being conducted by it, except for such
franchise, permit, license or similar authority, the lack of which would not reasonably be
expected to have a Material Adverse Effect. The Company has not received any written notice
of any proceeding relating to revocation or modification of any such franchise, permit,
license, or similar authority except where such revocation or modification would not
reasonably be expected to have a Material Adverse Effect.



Section 2.6 SEC Documents, Financial Statements. The Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with the SEC since
April 5, 2004, pursuant to the reporting requirements of the Exchange Act (all of the foregoing
filed prior to the Closing Date and all exhibits included therein and financial statements and
schedules thereto and documents (other than exhibits) incorporated by reference therein, being
hereinafter referred to herein as the “SEC Documents”). As of their respective dates, the SEC
Documents complied as to form in all material respects with the requirements of the Exchange Act or
the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Financial Statements
have been prepared in accordance with accounting principles generally accepted in the United
States, consistently applied, during the periods involved (except (i) as may be otherwise indicated
in the Financial Statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes, may be condensed or summary statements or
may conform to the SEC’s rules and instructions for Reports on Form 10-Q) and fairly present in all
material respects the consolidated financial position of the Company as of the dates thereof and
the consolidated results of its operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal and recurring year-end audit adjustments). All
material agreements that were required to be filed as exhibits to the SEC Documents under Item 601
of Regulation S-K (collectively, the “Material Agreements”) to which the Company is a party, or the
property or assets of the Company or are subject, have been filed as exhibits to the SEC Documents.
All Material Agreements are valid and enforceable against the Company in accordance with their
respective terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or moratorium or similar laws affecting creditors’ rights generally, and (ii) as
enforceability may be subject to general principles of equity and except as rights to indemnity and
contribution may be limited by state or federal securities laws or public policy underlying such
laws. The Company is not in breach of or default under any of the Material Agreements, and to the
Company’s knowledge, no other party to a Material Agreement is in breach of or default under such
Material Agreement, except in each case, for such breaches or defaults as would not reasonably be
expected to have a Material Adverse Effect. The Company has not received a notice of termination
of any of the Material Agreements.



Section 2.7 Absence of Litigation. As of the date hereof, there is no action, suit,
proceeding or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the Company’s knowledge, threatened against the
Company that if determined adversely to the Company would reasonably be expected to have a Material
Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending, any
investigation by the SEC involving the Company or any current or former director or officer of the
Company. The Company has not received any stop order or other order suspending the effectiveness
of any registration statement filed by the Company under the Exchange Act or the Securities Act
and, to the Company’s knowledge, the SEC has not issued any such order.



Section 2.8 Intellectual Property Rights. To the Company’s knowledge, the Company owns or
possesses, or believes it can obtain on reasonable terms, licenses or sufficient rights to use all
patents, patent applications, patent rights, inventions, know-how, trade secrets, trademarks,
trademark applications, service marks, service names, trade names and copyrights necessary to
enable it to conduct its business as conducted as of the date hereof (the “Intellectual Property”).
To the Company’s knowledge, the Company has not infringed the intellectual property rights of
third parties and no third party, to the Company’s knowledge, is infringing the Intellectual
Property, in each case, which could reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in the SEC Documents, there are no material options, licenses or agreements
relating to the Intellectual Property, nor is the Company bound by or a party to any material
options, licenses or agreements relating to the patents, patent applications, patent rights,
inventions, know-how, trade secrets, trademarks, trademark applications, service marks, service
names, trade names or copyrights of any other person or entity. As of the date hereof, there is no
material claim or action or proceeding pending or, to the Company’s knowledge, threatened, that
challenges the right of the Company with respect to any Intellectual Property.



Section 2.9 Placement Agents. The Company has taken no action that would give rise to any
claim by any person for brokerage commissions, placement agent’s fees or similar payments relating
to this Agreement or the transactions contemplated hereby.



Section 2.10 Investment Company. The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”). The Company shall
conduct its business in a manner so that it will not become subject to the Investment Company Act.



Section 2.11 No Material Adverse Change. Since September 30, 2005, except as described or
referred to in the SEC Documents and except for cash expenditures in the ordinary course of
business, there has not been a Material Adverse Effect. Since September 30, 2005, (i) there has not
been any dividend or distribution of any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock, (ii) the Company has not sustained any material loss or
interference with the Company’s business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor disturbance or dispute or any action, order or decree
of any court or arbitrator or governmental or regulatory authority, and (iii) the Company has not
incurred any liabilities except in the ordinary course of business.



Section 2.12 Nasdaq National Market. The issued and outstanding shares of Common Stock are
listed on Nasdaq, and, to the Company’s knowledge, there are no proceedings to revoke or suspend
such listing. The Company is in compliance in all material respects with the requirements of
Nasdaq for continued listing of the Common Stock thereon and any other Nasdaq listing and
maintenance requirements.



	 	 	 
	Section 2.13	 	[Reserved]
	Section 2.14

	 	[Reserved]






Section 2.15 Insurance. The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company believes are
prudent and customary for a company (i) in the businesses and location in which the Company is
engaged, (ii) with the resources of the Company, and (iii) at a similar stage of development as the
Company. The Company has not received any written notice that the Company will not be able to
renew its existing insurance coverage as and when such coverage expires. The Company believes it
will be able to obtain similar coverage at reasonable cost from similar insurers as may be
necessary to continue its business.



Section 2.16 Foreign Corrupt Practices. Since January 1, 2004, neither the Company, nor to
the Company’s knowledge, any director, officer, agent, employee or other person acting on behalf of
the Company has, in the course of its actions for, or on behalf of, the Company (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in violation of
in any material respect any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or employee.



Section 2.17 Private Placement. Neither the Company nor any person acting on its or their
behalf, has, directly or indirectly, made any offers or sales of any security or solicited any
offers to buy any security, under any circumstances that would require registration of the
Securities under the Securities Act.



Section 2.18 No Registration Rights. Other than as disclosed in the SEC Documents or as set
forth in this Agreement, no person has the right to require the Company to register any securities
for sale under the Securities Act. The granting and performance of the registration rights under
this Agreement will not violate or conflict with, or result in a breach of any provision of, or
constitute a default under, any agreement, indenture or instrument to which the Company is a party.



Section 2.19 Taxes. The Company has filed (or has obtained an extension of time within which
to file) all necessary federal, state and foreign income and franchise tax returns and has paid all
taxes shown as due on such tax returns, except where the failure to so file or the failure to so
pay would not reasonably be expected to have a Material Adverse Effect.



Section 2.20 Real and Personal Property. The Company has good and marketable title to, or has
valid rights to lease or otherwise use, all items of real and personal property that are material
to the business of the Company free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use of such
property by the Company or (ii) would not reasonably be expected to have a Material Adverse Effect.



Section 2.21 Application of Takeover Protections. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will not impose any
restriction on the Purchaser, or create in any party (including any current stockholder of the
Company) any rights, under any share acquisition, business combination, poison pill (including any
distribution under a rights agreement), or other similar anti-takeover provisions under the
Company’s charter documents or the laws of its state of incorporation.



Section 2.22 No Manipulation of Stock. The Company has not taken directly or indirectly any
action designed to stabilize or manipulate of the price of the Common Stock or any security of the
Company to facilitate the sale or resale of any of the Shares.



Section 2.23 Related Party Transactions. Except with respect to transactions that are not
required to be disclosed, all transactions that have occurred between or among the Company, on the
one hand, and any of its officers or directors, or any affiliate or affiliates of any such officer
or director, on the other hand, prior to the date hereof have been disclosed in the SEC Documents.



ARTICLE III

Representations and Warranties of the Purchaser




The Purchaser represents and warrants to the Company, with respect to itself and its purchase
hereunder, that:



Section 3.1 Investment Purpose. The Purchaser is purchasing the Securities for its own
account and not with a present view toward the public sale or distribution thereof and has no
intention of selling or distributing any of such Securities or any arrangement or understanding
with any other persons regarding the sale or distribution of such Securities except in accordance
with the provisions of Article 6 and except as would not result in a violation of the Securities
Act. The Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of
the Securities except in accordance with the provisions of Article 6 or pursuant to and in
accordance with the Securities Act.



Section 3.2 Accredited Investor. The Purchaser is an “accredited investor” as defined in Rule
501(a) of Regulation D promulgated under the Securities Act.



Section 3.3 Reliance on Exemptions. The Purchaser understands that the Securities are being
offered and sold to it in reliance upon specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying upon the truth and
accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire the Securities.



Section 3.4 Information. The Purchaser has been furnished with all relevant materials
relating to the business, finances and operations of the Company necessary to make an investment
decision, and materials relating to the offer and sale of the Securities, that have been requested
by the Purchaser, including, without limitation, the Company’s SEC Documents, and the Purchaser has
had the opportunity to review the SEC Documents. The Purchaser has been afforded the opportunity
to ask questions of the Company. Neither such inquiries nor any other investigation conducted by
or on behalf of the Purchaser or its representatives or counsel shall modify, amend or affect the
Purchaser’s right to rely on the truth, accuracy and completeness of the SEC Documents and the
Company’s representations and warranties contained herein.



Section 3.5 Acknowledgement of Risk.




(a) The Purchaser acknowledges and understands that its investment in the Securities
involves a significant degree of risk, including, without limitation, (i) the Company
remains a development stage business with limited operating history and requires substantial
funds in addition to the proceeds from the sale of the Securities; (ii) an investment in the
Company is speculative, and only a purchaser that can afford the loss of its entire
investment should consider investing in the Company and the Securities; (iii) the Purchaser
may not be able to liquidate its investment; (iv) transferability of the Securities is
extremely limited; (v) in the event of a disposition of the Securities, the Purchaser could
sustain the loss of its entire investment; and (vi) the Company has not paid any dividends
on its Common Stock since inception and does not anticipate the payment of dividends in the
foreseeable future. Such risks are more fully set forth in the SEC Documents;




(b) The Purchaser is able to bear the economic risk of holding the Securities for an
indefinite period, and has knowledge and experience in financial and business matters such
that it is capable of evaluating the risks of the investment in the Securities; and




(c) The Purchaser has, in connection with the Purchaser’s decision to purchase
Securities, not relied upon any representations or other information (whether oral or
written) other than as set forth in the representations and warranties of the Company
contained herein, and the Purchaser has, with respect to all matters relating to this
Agreement and the offer and sale of the Securities, relied solely upon the advice of such
Purchaser’s own counsel and has not relied upon or consulted any counsel to the Placement
Agents or counsel to the Company.



Section 3.6 Governmental Review. The Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed upon or made any
recommendation or endorsement of the Securities or an investment therein.



Section 3.7 Transfer or Resale. The Purchaser understands that:




(a) the Securities have not been and are not being registered under the Securities Act
or any applicable state securities laws and, consequently, the Purchaser may have to bear
the risk of owning the Securities for an indefinite period of time because the Securities
may not be transferred unless (i) the resale of the Securities is registered pursuant to an
effective registration statement under the Securities Act; (ii) the Purchaser has delivered
to the Company an opinion of counsel (in form, substance and scope reasonably satisfactory
to the Company) to the effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration; or (iii) the Securities are
sold or transferred pursuant to Rule 144;




(b) any sale of the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144 and, if Rule 144 is not applicable, any resale of the
Securities under circumstances in which the seller (or the person through whom the sale is
made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may
require compliance with some other exemption under the Securities Act or the rules and
regulations of the SEC thereunder; and




(c) except as set forth in Article 6, neither the Company nor any other person is under
any obligation to register the resale of the Shares or the Warrant Shares under the
Securities Act or any state securities laws or to comply with the terms and conditions of
any exemption thereunder.



Section 3.8 Legends.




(a) The Purchaser understands the certificates representing the Securities will bear a
restrictive legend in substantially the following form (and a stop-transfer order may be
placed against transfer of the certificates for such Securities):




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED,
SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE COMPANY SHALL BE ENTITLED TO
REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED TO THE EXTENT THAT SUCH OPINION IS REQUIRED PURSUANT TO THAT CERTAIN
SECURITIES PURCHASE AGREEMENT UNDER WHICH THE SECURITIES WERE ISSUED.




(b) The Purchaser may request that the Company remove, and the Company agrees to
authorize the removal of any legend from the Shares and Warrant Shares (i) following any
sale of the Shares or Warrant Shares pursuant to an effective registration statement or Rule
144, or (ii) if such Shares or Warrant Shares are eligible for sale under Rule 144(k).
Following the time a legend is no longer required for the Shares or Warrant Shares
hereunder, the Company will, no later than fifteen (15) Business Days following the delivery
by the Purchaser to the Company or the Company’s transfer agent of a legended certificate
representing such securities, deliver or cause to be delivered to such Purchaser a
certificate representing such securities that is free from all restrictive and other
legends. If unlegended certificates are not delivered to such Purchaser within such fifteen
(15) Business Day period, the Company shall pay such Purchaser liquidated damages in an
amount equal to 1.0% of the aggregate Purchase Price of the Shares or Warrant Shares
evidenced by such certificate for each 30-day period (or portion thereof) beyond such
fifteen (15) Business Days that the unlegended certificates have not been so delivered.



Section 3.9 Authorization; Enforcement. The Purchaser has the requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated hereby. The Purchaser
has taken all necessary action to authorize the execution, delivery and performance of this
Agreement. Upon the execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity and except as rights to indemnity and
contribution may be limited by state or federal securities laws or public policy underlying such
laws.



Section 3.10 Residency. The Purchaser is a resident of the State of [Maryland].



Section 3.11 No Short Sales. Between the time the Purchaser learned about the Offering and the
public announcement of the Offering, the Purchaser has not engaged in any short sales or similar
transactions with respect to the Common Stock, nor has the Purchaser, directly or indirectly,
caused any Person to engage in any short sales or similar transactions with respect to the Common
Stock.



ARTICLE IV

Covenants




	 	 	 
	Section 4.1

	 	[Reserved]1
	 
	 	 
	Section 4.2

	 	[Reserved]
	 
	 	 
	Section 4.3

	 	[Reserved]
	 
	 	 
	Section 4.4

	 	[Reserved]






Section 4.5 Sales by Purchaser. The Purchaser will sell any Securities held by it in
compliance with applicable prospectus delivery requirements, if any, or otherwise in compliance
with the requirements for an exemption from registration under the Securities Act and the rules and
regulations promulgated thereunder. The Purchaser will not make any sale, transfer or other
disposition of the Securities in violation of federal or state securities laws.



Section 4.6 Reservation of Common Stock. The Company shall reserve and keep available at all
times during which the Warrants remain exercisable, free of preemptive rights, a sufficient number
of shares of Common Stock for the purpose of enabling the Company to issue Warrant Shares pursuant
to this Agreement.



Section 4.7 [Reserved]



Section 4.8 “Market Stand-Off” Agreement. The Purchaser hereby agrees that it will not,
without the prior written consent of the managing underwriter, during the period commencing on the
date of the filing of any registration statement under the Securities Act for the sale of any of
the Company’s securities to the public pursuant to an underwritten public offering (each, a “Public
Offering”) and ending on the date specified by the Company and the managing underwriter (such
period not to exceed ninety (90) days) (i) lend, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock
(whether such shares or any such securities are then owned by the Purchaser or are thereafter
acquired), or (ii) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise; provided however, that the Purchaser’s agreement under this
Section 4.8 shall only be effective in connection with a particular Public Offering if (x) all
persons including shares of Common Stock in such Public Offering and (y) all of the Company’s
officers, directors, and holders of at least 5% of the outstanding Common Stock (or securities
convertible into at least 5% of the Common Stock) also enter into agreements to such effect. The
underwriters in connection with any such Public Offering are intended third-party beneficiaries of
this Section 4.8 and shall have the right, power and authority to enforce the provisions hereof as
though they were a party hereto. The Purchaser further agrees to execute such agreements as may be
reasonably requested by the underwriters in any Public Offering that are consistent with this
Section 4.8 or that are necessary to give further effect thereto. In order to enforce this Section
4.8, the Company may impose stop-transfer instructions with respect to the Registrable Securities
of the Purchaser (and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.



ARTICLE V

Conditions To Closing




Section 5.1 Conditions to Obligations of the Company. The Company’s obligation to complete
the purchase and sale of the Securities and deliver such stock certificate(s) and Warrant(s) to the
Purchaser is subject to the fulfillment or waiver as of the Closing Date of the following
conditions:




(a) Receipt of Funds. The Company shall have received immediately available funds in
the full amount of the Purchase Price for the Shares and Warrants being purchased hereunder.




(b) Representations and Warranties. The representations and warranties made by each
Purchaser in Article 3 shall be true and correct in all material respects as of the Closing
Date.




(c) Covenants. All covenants, agreements and conditions contained in this Agreement to
be performed by the Purchasers on or prior to the Closing Date shall have been performed or
complied with in all material respects.




(d) Blue Sky. The Company shall have obtained all necessary blue sky law permits and
qualifications, or secured exemptions therefrom, required by any state for the offer and
sale of the Securities.




(e) Absence of Litigation. No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted or be pending before any court, arbitrator,
governmental body, agency or official.




(f) No Governmental Prohibition. The sale of the Securities by the Company shall not
be prohibited by any law or governmental order or regulation.




(g) No Stop Order. No stop order or suspension of trading shall have been imposed by
Nasdaq, the SEC or any other governmental or regulatory body with respect to public trading
in the Common Stock.



Section 5.2 Conditions to Purchasers’ Obligations at the Closing. The Purchaser’s obligation
to complete the purchase and sale of the Shares and Warrants is subject to the fulfillment or
waiver as of the Closing Date of the following conditions:




(a) Representations and Warranties. The representations and warranties made by the
Company in Article 2 shall be true and correct in all material respects as of the Closing
Date.




(b) Covenants. All covenants, agreements and conditions contained in this Agreement to
be performed by the Company on or prior to the Closing Date shall have been performed or
complied with in all material respects.




(c) Blue Sky. The Company shall have obtained all necessary blue sky law permits and
qualifications, or secured exemptions therefrom, required by any state or foreign or other
jurisdiction for the offer and sale of the Shares.




(d) Legal Opinion. The Company shall have delivered to such Purchaser an opinion,
dated as of the Closing Date, from Covington & Burling, counsel to the Company, in
substantially the form attached hereto as Exhibit B hereto.




(e) Transfer Agent Instructions. The Company shall have delivered to its transfer
agent irrevocable instructions to issue to the Purchaser one or more certificates
representing the Shares and Warrants to purchase the Warrant Shares.




(f) Absence of Litigation. No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted or be pending before any court, arbitrator,
governmental body, agency or official.




(g) No Governmental Prohibition. The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation.




(h) No Stop Order. No stop order or suspension of trading shall have been imposed by
Nasdaq, the SEC or any other governmental or regulatory body with respect to public trading
in the Common Stock.



ARTICLE VI

Registration Rights




Section 6.1 Incidental Registration. If the Company at any time proposes to register any of
its securities under the Securities Act for sale to the public, whether for its own account or for
the account of other security holders or both (except with respect to registration statements on
Forms S-4, S-8 or any successor to such forms or another form not available for registering the
Registrable Securities for sale to the public), each such time it will promptly give written notice
to all Holders of the Registrable Securities of its intention so to do. Upon the written request
of any such Holder, received by the Company within 20 days after the giving of any such notice by
the Company, to register any or all of its Registrable Securities, the Company will use its best
efforts to cause the Registrable Securities as to which registration shall have been so requested
to be included in the securities to be covered by the registration statement proposed to be filed
by the Company, all to the extent requisite to permit the sale or other disposition by the Holder
(in accordance with its written request) of such Registrable Securities so registered. 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 of Registrable Securities as a part of the
written notice given pursuant to this Section 6.1. In such event, the right of any Holder of
Registrable Securities to registration pursuant to this Section 6.1 shall be conditioned upon such
Holder’s participation in such underwriting to the extent provided herein. All Holders of
Registrable Securities proposing to distribute their securities through such underwriting shall
(together with the Company and the other shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company. Notwithstanding any other provision of this
Section 6.1, if the underwriter determines that marketing factors require a limitation on the
number of shares to be underwritten, the Company shall so advise all holders of securities
requesting registration of any limitations on the number of shares to be underwritten, and the
number of shares that are entitled to be included in the registration and underwriting shall be
allocated (i) first, to the Company with respect to shares of Common Stock being sold for its own
account; (ii) second, to holders of capital stock of the Company that is being registered pursuant
to either (A) that certain Registration Rights Agreement dated as of July 22, 1998, between the
Company and the Trustees of Columbia University in the City of New York or (B) that certain Fourth
Amended and Restated Investor Rights Agreement dated as of September 11, 2003, among the Company
and the other parties thereto, as amended, and (iii) third, to Holders of Registrable Securities
under this Agreement requesting registration in proportion, as nearly as practicable, to the
respective amounts of securities owned by them. Notwithstanding the foregoing provisions, the
Company may withdraw any registration statement referred to in this Section 6.1 without thereby
incurring any liability to the Holders of Registrable Securities. If any holder of Registrable
Securities disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such registration.



Section 6.2 Expenses. All Registration Expenses incurred in connection with any registration,
qualification, exemption or compliance pursuant to Section 6.1 shall be borne by the Company. All
Selling Expenses relating to the sale of securities registered by or on behalf of any Holder shall
be borne by such Holder.



Section 6.3 [Reserved].



Section 6.4 Covenants. In the case of the registration, qualification, exemption or
compliance effected by the Company pursuant to this Agreement, the Company shall, upon reasonable
request, inform each Holder as to the status of such registration, qualification, exemption and
compliance and shall, at its expense, as applicable:




(a) use its commercially reasonable efforts to keep any Registration Statement free of
any material misstatements or omissions;




(b) advise the Holders:




(i) within two Business Days when a Registration Statement or any amendment
thereto has been filed with the SEC and when any Registration Statement or any
post-effective amendment thereto has become effective;




(ii) within five Business Days of any request by the SEC for amendments or
supplements to any Registration Statement or the prospectus included therein or for
additional information;




(iii) within five Business Days of the issuance by the SEC of any stop order
suspending the effectiveness of any Registration Statement or the initiation of any
proceedings for such purpose;




(iv) within five Business Days of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Registrable
Securities included in any Registration Statement for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose; and




(v) within five Business Days of the occurrence of any event that requires the
making of any changes in any Registration Statement or the related prospectus so
that, as of such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in the light of the circumstances
under which they were made) not misleading;




(c) use its commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration Statement as soon as reasonably
practicable;




(d) promptly deliver to each such Holder, without charge, as many copies of the
prospectus included in any Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request in writing; and the Company consents to the use,
consistent with the provisions hereof, of the prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the prospectus or any amendment
or supplement thereto;




(e) if a Holder so requests in writing, deliver to each Holder, without charge, (i) one
copy of the following documents, other than those documents available via EDGAR: (A) its
annual report to its stockholders, if any (which annual report shall contain financial
statements audited in accordance with generally accepted accounting principles in the United
States of America by a firm of certified public accountants of recognized standing), (B) if
not included in substance in its annual report to stockholders, its annual report on Form
10-K (or similar form), (C) its definitive proxy statement with respect to its annual
meeting of stockholders, (D) each of its quarterly reports to its stockholders, and, if not
included in substance in its quarterly reports to stockholders, its quarterly report on Form
10-Q (or similar form), and (E) a copy of the full Registration Statement (the foregoing, in
each case, excluding exhibits); and (ii) if explicitly requested, all exhibits excluded by
the parenthetical to the immediately preceding clause (E);




(f) prior to any public offering of Registrable Securities pursuant to any Registration
Statement, promptly take such actions as may be necessary to register or qualify or obtain
an exemption for offer and sale under the securities or blue sky laws of such United States
jurisdictions as any such Holders reasonably request in writing, provided that the Company
shall not for any such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction, and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Registration Statement;




(g) upon the occurrence of any event contemplated by Section 6.4(b)(v) above, the
Company shall use its commercially reasonable efforts to as soon as reasonably practicable
prepare a post-effective amendment to the Registration Statement or a supplement to the
related prospectus, or file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the prospectus will not include
any untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading;




(h) otherwise use its commercially reasonable efforts to comply in all material
respects with all applicable rules and regulations of the SEC which could affect the sale of
the Registrable Securities;




(i) use its commercially reasonable efforts to cause all Registrable Securities to be
listed on each securities exchange or market, if any, on which equity securities issued by
the Company have been listed;




(j) use its commercially reasonable efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby and to enable the Holders
to sell Registrable Securities under Rule 144;




(k) provide to each Purchaser and its representatives, if requested, the opportunity to
conduct a reasonable inquiry of the Company’s financial and other records during normal
business hours and make available on reasonable prior notice and during normal business
hours its officers, directors and employees for questions regarding information which such
Purchaser may reasonably request in order to fulfill any due diligence obligation on its
part; and




(l) permit a single counsel for the Purchasers to review the Registration Statement and
all amendments and supplements thereto, within two Business Days prior to the filing thereof
with the Commission;



provided, that in the case of clauses (k) and (l) above, the Company shall not be required (A) to
delay the filing of the Registration Statement or any amendment or supplement thereto as a result
of any ongoing diligence inquiry by or on behalf of a Holder or to receive any comments to the
Registration Statement or any amendment or supplement thereto by or on behalf of a Holder if such
inquiry or comments would require or result in a delay in the filing of such Registration
Statement, amendment or supplement, as the case may be, or (B) to provide, and shall not provide,
any Purchaser or its representatives with material, non-public information unless such Purchaser
agrees to receive such information and enters into a written confidentiality agreement with the
Company in a form reasonably acceptable to the Company.



Section 6.5 Certain Limitations. The Holders shall have no right to take any action to
restrain, enjoin or otherwise delay any registration pursuant to Section 6.1 hereof as a result of
any controversy that may arise with respect to the interpretation or implementation of this
Agreement.



1 Note: This is covered by Section 6.8.



1



Section 6.6 Indemnity.




(a) To the extent permitted by law, the Company shall indemnify each Holder and each
person controlling such Holder within the meaning of Section 15 of the Securities Act, with
respect to which any registration that has been effected pursuant to this Agreement, against
all claims, losses, damages and liabilities (or action in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened (subject to
Section 6.6(c) below), arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in a Registration Statement, prospectus, any
amendment or supplement thereof, or other document 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
not misleading, in light of the circumstances in which they were made, or any violation by
the Company of any rule or regulation promulgated by the Securities Act applicable to the
Company and relating to any action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each Holder and each
person controlling such Holder, for reasonable legal and other out-of-pocket expenses
reasonably incurred in connection with investigating or defending any such claim, loss,
damage, liability or action as incurred; provided that the Company will not be liable in any
such case to the extent that any untrue statement or omission or allegation thereof is made
in reliance upon and in conformity with written information furnished to the Company by or
on behalf of such Holder for use in preparation of such Registration Statement, prospectus,
amendment or supplement; provided further that the Company will not be liable in any such
case where the claim, loss, damage or liability arises out of or is related to the failure
of such Holder to comply with the covenants and agreements contained in this Agreement
respecting sales of Registrable Securities, and except that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such untrue
statement or alleged untrue statement or omission or alleged omission made in the
preliminary prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the Registration Statement becomes effective or in the amended prospectus
filed with the SEC pursuant to Rule 424(b) or in the prospectus subject to completion under
Rule 434 of the Securities Act, which together meet the requirements of Section 10(a) of the
Securities Act (the “Final Prospectus”), such indemnity shall not inure to the benefit of
any such Holder or any such controlling person, if a copy of the Final Prospectus furnished
by the Company to the Holder for delivery was not furnished to the person or entity
asserting the loss, liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act and the Final Prospectus would have cured the defect giving
rise to such loss, liability, claim or damage.




(b) Each Holder will severally, and not jointly, indemnify the Company, each of its
directors and officers, and each person who controls the Company within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened (subject to Section 6.6(c) below), arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact contained in
a Registration Statement, prospectus, or any amendment or supplement thereof, incident to
any such registration, 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 not
misleading, in light of the circumstances in which they were made, and will reimburse the
Company, such directors and officers, and each person controlling the Company for reasonable
legal and any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action as incurred, in each case to the
extent, but only to the extent, that such untrue statement or omission or allegation thereof
is made in reliance upon and in conformity with written information furnished to the Company
by or on behalf of the Holder for use in preparation of the Registration Statement,
prospectus, amendment or supplement; provided that the indemnity shall not apply to the
extent that such claim, loss, damage or liability results from the fact that a current copy
of the prospectus was not made available to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required by the
Securities Act and the Final Prospectus would have cured the defect giving rise to such
loss, claim, damage or liability. Notwithstanding the foregoing, a Holder’s aggregate
liability pursuant to this subsection (b) shall be limited to the net amount received by the
Holder from the sale of the Registrable Securities giving rise to such claims, losses,
damages and liabilities (and actions in respect thereof).




(c) Each party entitled to indemnification under this Section 6.6 (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 (at its
expense) to assume the defense of any such claim or any 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 or delayed), and the Indemnified Party may participate in such
defense at such Indemnified Party’s expense; 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, unless such failure is materially prejudicial to
the Indemnifying Party in defending such claim or litigation. An Indemnifying Party shall
not be liable for any settlement of an action or claim effected without its written consent
(which consent will not be unreasonably withheld or delayed). No Indemnifying Party, in its
defense of any such claim or litigation, shall, except with the consent (such consent not to
be unreasonably withheld or delayed) of the 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 6.6 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold
such Indemnified Party harmless with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Indemnifying Party
or by the Indemnified Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, a Holder’s aggregate liability pursuant to this subsection
(d) shall be limited to the net amount received by the Holder from the sale of Registrable
Securities giving rise to such loss, liability, claim, damage or expense (or actions in
respect thereof) less all other amounts paid as damages in respect thereto.



Section 6.7 Additional Covenants and Agreements of the Holders.




(a) Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event requiring the preparation of a supplement or amendment to a
prospectus relating to Registrable Securities so that, as thereafter delivered to the
Holders, such prospectus shall not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading, each Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement and prospectus contemplated by Section 6.1
until its receipt of copies of the supplemented or amended prospectus from the Company and,
if so directed by the Company, each Holder shall deliver to the Company all copies, other
than permanent file copies then in such Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.




(b) Each Holder shall suspend, upon request of the Company, any disposition of
Registrable Securities pursuant to the Registration Statement and prospectus contemplated by
Section 6.1 during no more than two periods of no more than 30 calendar days each during any
12-month period to the extent that the Board of Directors of the Company determines in good
faith that the sale of Registrable Securities under the Registration Statement would be
reasonably likely to cause a violation of the Securities Act or Exchange Act.




(c) As a condition to the inclusion of its Registrable Securities, each Holder shall
furnish to the Company such information regarding such Holder and the distribution proposed
by such Holder as the Company may reasonably request in writing, including completing a
Registration Statement questionnaire in the form provided by the Company, or as shall be
required in connection with any registration referred to in this Article 6.




(d) Each Holder hereby covenants with the Company (i) not to make any sale of the
Registrable Securities without effectively causing the prospectus delivery requirements
under the Securities Act to be satisfied, and (ii) if such Registrable Securities are to be
sold by any method or in any transaction other than on a national securities exchange,
Nasdaq or in the over-the-counter market, in privately negotiated transactions or in a
combination of such methods, to notify the Company at least five Business Days prior to the
date on which the Holder first offers to sell any such Registrable Securities.




(e) Each Holder acknowledges and agrees that the Registrable Securities sold pursuant
to the Registration Statement are not transferable on the books of the Company unless the
stock certificate submitted to the transfer agent evidencing such Registrable Securities is
accompanied by a certificate reasonably satisfactory to the Company to the effect that (i)
the Registrable Securities have been sold in accordance with such Registration Statement and
(ii) the requirement of delivering a current prospectus has been satisfied.




(f) Each Holder agrees not to take any action with respect to any distribution deemed
to be made pursuant to such Registration Statement which would constitute a violation of
Regulation M under the Exchange Act or any other applicable rule, regulation or law.




(g) If a Registration Statement is no longer effective, the Holders shall discontinue
sales of shares pursuant to such Registration Statement upon receipt of notice from the
Company of its intention to remove from registration the shares covered by such Registration
Statement which remain unsold, and such Holders shall notify the Company of the number of
 shares registered which remain unsold immediately upon receipt of such notice from the
Company.



Section 6.8 Additional Covenants and Agreements of the Company. With a view to making
available to the Holders the benefits of certain rules and regulations of the SEC that at any time
permit the sale of the Registrable Securities to the public without registration, so long as the
Holders still own Registrable Securities, the Company shall use its reasonable best efforts to:




(a) make and keep public information available, as those terms are understood and
defined in Rule 144 under the Securities Act, at all times;




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




(c) so long as a Holder owns any Registrable Securities, furnish to such Holder, upon
any reasonable request, a written statement by the Company as to its compliance with Rule
144 under the Securities Act, and of the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the Company as such
Holder may reasonably request in availing itself of any rule or regulation of the SEC
allowing a Holder to sell any such securities without registration.



2



Section 6.9 Assignment of Registration Rights. The rights to cause the Company to register
Registrable Securities granted to the Holders by the Company under Section 6.1 may be assigned by a
Holder in connection with a transfer by such Holder of all or a portion of its Registrable
Securities, provided, however, that (i) such transfer complies with all applicable securities laws;
(ii) such Holder gives prior written notice to the Company; and (iii) such transferee agrees in
writing to comply with the terms and provisions of this Agreement, and has provided the Company
with a completed Registration Statement Questionnaire in such form as is reasonably requested by
the Company. Except as specifically permitted by this Section 6.9, the rights of a Holder with
respect to Registrable Securities as set out herein shall not be transferable to any other Person,
and any attempted transfer shall cause all rights of such Holder therein to be forfeited.



Section 6.10 Waiver of Registration Rights. The rights of any Holder under any provision of
this Article 6 may be waived (either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely) or amended by an
instrument in writing signed by Holders holding not less than a majority of the Registrable
Securities (including Warrant Shares issuable upon exercise of the Warrants); provided, however,
that no consideration shall be offered or paid to any person to amend or consent to a waiver or
modification of any provision of this Section 6 unless the same consideration also is offered to
all Holders of Registrable Securities.



Section 6.11 Termination of Registration Rights. The rights set forth in this Article IV
shall terminate, as to any Holder, when the Registrable Securities held by such Holder (together
with any Affiliate of such Holder with whom such Holder must aggregate its sales under SEC Rule
144) could be sold without restriction under SEC Rule 144(k) within a ninety (90) day period.



ARTICLE VII

Definitions




Section 7.1 Definitions. The following capitalized terms have the following meanings:



“Affiliate” means, with respect to any Person (as defined below), any other Person
controlling, controlled by or under direct or indirect common control with such Person (for the
purposes of this definition “control,” when used with respect to any specified Person, shall mean
the power to direct the management and policies of such person, directly or indirectly, whether
through ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” shall have meanings correlative to the foregoing).



“Business Day” means a day Monday through Friday on which banks are generally open for
business in New York City.



“Bylaws” has the meaning set forth in Section 2.3.



“Certificate of Incorporation” has the meaning set forth in Section 2.3.



“Closing” has the meaning set forth in Section 1.3.



“Closing Date” has the meaning set forth in Section 1.3.



“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“Final Prospectus” has the meaning set forth in Section 6.6(a).



“Financial Statements” means the financial statements of the Company included in the SEC
Documents.



“Holder” means any person holding Registrable Securities or any person to whom the rights
under Article 6 have been transferred in accordance with Section 6.9 hereof.



“Indemnified Party” has the meaning set forth in Section 6.6(c).



“Indemnifying Party” has the meaning set forth in Section 6.6(c).



“Intellectual Property” has the meaning set forth in Section 2.8.



“Material Adverse Effect” means a material adverse effect on (a) the business, operations,
assets, financial condition or prospects of the Company, taken as a whole, or (b) the ability of
the Company to perform its obligations pursuant to the transactions contemplated by this Agreement.



“Nasdaq” means The Nasdaq National Market.



“Offering” means the private placement of the Company’s Securities contemplated by this
Agreement.



“Person” means any person, individual, corporation, limited liability company, partnership,
trust or other nongovernmental entity or any governmental agency, court, authority or other body
(whether foreign, federal, state, local or otherwise).



“Purchaser” means the Stanley Medical Research Institute and its permitted transferees.



“Purchase Price” has the meaning set forth in Section 1.1.



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



“Registrable Securities” means (i) the Shares and (ii) the Warrant Shares; provided, however,
that securities shall only be treated as Registrable Securities if and only for so long as they (A)
have not been disposed of pursuant to a registration statement declared effective by the SEC, (B)
have not been sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act so that all transfer restrictions and restrictive legends with
respect thereto are removed upon the consummation of such sale or (C) are held by a Holder or a
permitted transferee pursuant to Section 6.9.



“Registration Expenses” means all expenses incurred by the Company in complying with Section
6.1 hereof, including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and expenses of counsel for the Company, blue sky fees and
expenses and the expense of any special audits incident to or required by any such registration
(but excluding the fees of legal counsel for any Holder).



“Registration Statement” means any registration statement covering Registrable Securities that
is effective at any time under the Securities Act, provided, however, that for purposes of Section
6.7(g) only, “Registration Statement,” shall mean any registration statement covering Registrable
Securities that was declared effective under the Securities Act.



“Rule 144” means Rule 144 promulgated under the Securities Act, or any successor rule.



“SEC” means the United States Securities and Exchange Commission.



“SEC Documents” has the meaning set forth in Section 2.6.



“Securities” has the meaning set forth in Section 1.1.



“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute.



“Selling Expenses” means all selling commissions applicable to the sale of Registrable
Securities and all fees and expenses of legal counsel for any Holder.



“Shares” has the meaning set forth in Section 1.1.



“Warrant Shares” has the meaning set forth in Section 2.4.



“Warrants” has the meaning set forth in Section 1.1.



Section 7.2 Certain Interpretations. Except where expressly stated otherwise in this
Agreement, the following rules of interpretation apply to this Agreement: (i) “or” is not exclusive
and “include”, “includes” and “including” are not limiting; (ii) definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such terms; (iii)
references to an agreement or instrument mean such agreement or instrument as from time to time
amended, modified or supplemented; (iv) references to a Person are also to its permitted successors
and assigns; (v) references to an “Article”, “Section”, “Subsection”, “Exhibit” or “Schedule” refer
to an Article of, a Section or Subsection of, or an Exhibit or Schedule to, this Agreement; and
(vi) words importing the masculine gender include the feminine or neuter and, in each case, vice
versa.



ARTICLE VIII

Governing Law; Miscellaneous




Section 8.1 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by the laws of the State of New York as such laws are applied to contracts entered into or
to be performed entirely within such state. Except with respect to matters pertaining to
injunctive relief, any dispute between the parties hereto shall be subject to binding arbitration
before a retired Maryland Circuit Court Judge at J.A.M.S./Endispute located in Montgomery County,
Maryland, such arbitration to be conducted pursuant to the J.A.M.S./Endispute procedure rules for
commercial disputes then in effect. The award of the arbitrator shall include an award of
reasonable attorneys’ fees and costs to the prevailing party. Except as provided in the next
preceding sentence, any claim or controversy arising out of or related to this Agreement or any
breach hereof (including claims for injunctive relief) shall be adjudicated in the state and
federal courts in Montgomery County having jurisdiction over disputes arising in the State of
Maryland, and the parties hereby consent to the jurisdiction and venue of such courts.



Section 8.2 Counterparts; Signatures by Facsimile. This Agreement may be executed in two or
more counterparts, all of which are considered one and the same agreement and will become effective
when counterparts have been signed by each party and delivered to the other parties. This
Agreement, once executed by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so delivering this
Agreement.



Section 8.3 Headings. The headings of this Agreement are for convenience of reference only,
are not part of this Agreement and do not affect its interpretation.



Section 8.4 Severability. If any provision of this Agreement is invalid or unenforceable
under any applicable statute or rule of law, then such provision will be deemed modified in order
to conform with such statute or rule of law. Any provision hereof that may prove invalid or
unenforceable under any law will not affect the validity or enforceability of any other provision
hereof.



Section 8.5 Entire Agreement; Amendments. This Agreement (including all schedules and
exhibits hereto) and any confidentiality agreement entered into between the Company and a Purchaser
(which confidentiality agreement shall continue to be in full force and effect) constitutes the
entire agreement among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than those set forth or
referred to herein or therein. This Agreement supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof. No provision of this Agreement
may be waived or amended other than by an instrument in writing signed by the party to be charged
with enforcement. Any amendment or waiver effected in accordance with this Section 8.5 shall be
binding upon each holder of any Securities purchased under this Agreement at the time outstanding
(including securities into which such Securities are convertible and for which such Securities are
exercisable), each future holder of all such securities, and the Company.



Section 8.6 Notices. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed email, telex or facsimile if sent during normal business hours of the recipient,
if not, then on the next business day, (c) five days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one business day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written
verification of receipt. The addresses for such communications are:



	 	 	 	 	 
	 
	 	Stanley Medical Research Institute

	 
	 	5430 Grosvenor Lane, Suite 200
	 
	 	Bethesda, MD  20814

	All notices to SMRI shall be
	 	Attn: Dr. Michael Knable, DO

	addressed as follows:
	 	Fax:  (301) 571-0769

	with a copy to:
	 	Fleischman and Walsh, L.L.P.

	 
	 	1919 Pennsylvania Avenue, N.W
	 
	 	Suite 600

	 
	 	Washington, DC  20006

	 
	 	Attn:  Sean P. McGuinness

	 
	 	Fax:  (202) 265-5706







	 	 	 
	All notices to MEMORY shall

be addressed as follows:

	 	MEMORY Pharmaceuticals Corp.

100 Philips Parkway

Montvale, New Jersey 07645

Attn: Vice President, Business

Development

Fax: (858) 558-2872
	 
	 	 
	 
	 	 
	 
	 	 
	with a copy to:

	 	Covington & Burling

1330 Avenue of the Americas

New York, NY 10019

Attn: Ellen B. Corenswet

Fax:






Any party may, by written notice to the other, designate a new address or fax number to which
notices to the party giving the notice shall thereafter be mailed or faxed. Each party will
provide ten days’ advance written notice to the other party of any change in its address.



Section 8.7 Successors and Assigns. This Agreement is binding upon and inures to the benefit
of the parties and their successors and permitted assigns. The Company will not assign this
Agreement or any rights or obligations hereunder without the prior written consent of the
Purchaser, and the Purchaser may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Company, except as permitted in accordance with Section
6.9 hereof.



3



Section 8.8 Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto, their respective permitted successors and assigns, and is not for the benefit of,
nor may any provision hereof be enforced by, any other person.



Section 8.9 Further Assurances. Each party will do and perform, or cause to be done and
performed, all such further acts and things, and will execute and deliver all other agreements,
certificates, instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.



Section 8.10 No Strict Construction. The language used in this Agreement is deemed to be the
language chosen by the parties to express their mutual intent, and no rules of strict construction
will be applied against either party.



Section 8.11 Equitable Relief. The Company recognizes that if it fails to perform or
discharge any of its obligations under this Agreement, any remedy at law may prove to be inadequate
relief to the Purchaser. The Company therefore agrees that the Purchaser is entitled to seek
temporary and permanent injunctive relief in any such case. The Purchaser also recognizes that, if
it fails to perform or discharge any of its obligations under this Agreement, any remedy at law may
prove to be inadequate relief to the Company. The Purchaser therefore agrees that the Company is
entitled to seek temporary and permanent injunctive relief in any such case.



Section 8.12 Survival of Representations and Warranties. Notwithstanding any investigation
made by any party to this Agreement, all representations and warranties made by the Company and the
Purchaser herein shall survive for a period of one year following the date hereof.



[Remainder of this page intentionally left blank.]








4






In Witness Whereof, the parties hereto have caused this Securities Purchase
Agreement to be executed by their duly authorized representatives as of the date first written
above.



Memory Pharmaceuticals Corp.




By /s/ James R. Sulat

Title President and Chief Executive Officer





The Stanley Medical Research Institute




By /s/ Michael Knable

Title Executive Director





5