EXHIBIT 4.1



 






Exhibit 4.1




Amended and Restated Certificate of Incorporation




Of




Memory Pharmaceuticals Corp.




     The name of the Corporation is Memory Pharmaceuticals Corp. (the “Corporation”). The original
Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State
of Delaware on March 19, 1997 under its current name.



     FIRST: The name of the Corporation is Memory Pharmaceuticals Corp.



     SECOND: The address of the Corporation’s registered office in the State of Delaware is
Corporation Service Company, 2711 Centreville Road, Suite 400, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is Corporation Service Company.



     THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation
is to engage in any lawful act or activity for which corporations may be organized under Delaware
law.



     FOURTH: The total number of shares of all classes of stock which the Corporation shall have
authority to issue is 105,000,000 shares, consisting of (i) 100,000,000 shares of Common Stock,
$.001 par value per share (the “Common Stock”), and (ii) 5,000,000 shares of Preferred Stock, $.001
par value per share (the “Preferred Stock”).



     The following is a statement of the designations and the powers, privileges and rights, and
the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation.


A COMMON STOCK.




     1. General. The voting, dividend and liquidation rights of the holders of the Common
Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any
series as may be designated by the Board of Directors upon any issuance of the Preferred Stock of
any series.



     2. Voting. The holders of the Common Stock shall have voting rights at all meetings
of stockholders, each such holder being entitled to one vote for each share thereof held by such
holder; provided, however, that, except as otherwise required by law, holders of Common Stock, as
such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (which,
as used herein, shall mean the certificate of incorporation of the Corporation, as amended from
time to time, including the terms of any certificate of designation of any series of Preferred
Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the
holders of such affected series are entitled, either separately or together with the holders of one
or more other such series, to vote thereon pursuant to this Certificate of Incorporation. There
shall be no cumulative voting.




The number of authorized shares of Common Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the holders



 









 




of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of
Section 242(b)(2) of the General Corporation Law of the State of Delaware.




     3. Dividends. Dividends may be declared and paid on the Common Stock from funds
lawfully available therefor as and when determined by the Board of Directors and subject to any
preferential dividend or other rights of any then outstanding Preferred Stock.



     4. Liquidation. Upon the dissolution or liquidation of the Corporation, whether
voluntary or involuntary, holders of Common Stock will be entitled to receive all assets of the
Corporation available for distribution to its stockholders, subject to any preferential or other
rights of any then outstanding Preferred Stock.


B PREFERRED STOCK.




     Preferred Stock may be issued from time to time in one or more series, each of such series to
have such terms as stated or expressed herein and in the resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise provided by law. Different series of Preferred
Stock shall not be construed to constitute different classes of shares for the purposes of voting
by classes unless expressly provided.



     Authority is hereby expressly granted to the Board of Directors from time to time to issue the
Preferred Stock in one or more series, and in connection with the creation of any such series, by
resolution or resolutions providing for the issuance of the shares thereof, to determine and fix
the number of shares of such series and such voting powers, full or limited, or no voting powers,
and such designations, preferences and relative participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, including without limitation thereof,
dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be
stated and expressed in such resolutions, all to the full extent now or hereafter permitted by
Delaware law. Without limiting the generality of the foregoing, the resolutions providing for
issuance of any series of Preferred Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to the extent permitted by law.
Except as otherwise provided in this Certificate of Incorporation, no vote of the holders of the
Preferred Stock or Common Stock shall be a prerequisite to the designation or issuance of any
shares of any series of the Preferred Stock authorized by and complying with the conditions of this
Certificate of Incorporation, the right to have such vote being expressly waived by all present and
future holders of the capital stock of the Corporation.



     The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of the State of Delaware.



     FIFTH: Except as otherwise provided herein, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of Incorporation, in the



 









 




manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this reservation.




     SIXTH: In furtherance and not in limitation of the powers conferred upon it by the laws of the
State of Delaware, and subject to the terms of any series of Preferred Stock, the Board of
Directors shall have the power to adopt, amend, alter or repeal the Corporation’s Bylaws. The
affirmative vote of a majority of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present shall be required to adopt, amend, alter or repeal
the Corporation’s Bylaws. The Corporation’s Bylaws also may be adopted, amended, altered or
repealed by the affirmative vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast in any annual election of directors or class
of directors, in addition to any other vote required by this Certificate of Incorporation.
Notwithstanding any other provisions of law, this Certificate of Incorporation or the Bylaws of the
Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast in any annual election of directors or class of directors
shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article
SIXTH.



     SEVENTH: Except to the extent that Delaware law prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty, no director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No
amendment to or repeal of this provision shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal.



     EIGHTH: The Corporation shall provide indemnification as follows:



     1. Actions, Suits and Proceedings Other than by or in the Right of the Corporation.
The Corporation shall indemnify each person who was or is a party or threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer, partner, employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) (all such persons being referred to hereafter as an “Indemnitee”), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on
behalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom,
if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee



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reasonably believed to be in, or not opposed to, the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.




     2. Actions or Suits by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee who was or is a party to or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to have been taken or
omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except that no indemnification shall be made
under this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Corporation, unless, and only to the extent, that the Court of
Chancery of Delaware shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses (including attorneys’ fees) which the Court of Chancery of
Delaware shall deem proper.



     3. Indemnification for Expenses of Successful Party. Notwithstanding any other
provisions of this Article, to the extent that an Indemnitee has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this
Article EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any such
action, suit or proceeding, Indemnitee shall be indemnified against all expenses (including
attorneys’ fees) actually and reasonably incurred by or on behalf of Indemnitee in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on
the merits or otherwise (including a disposition without prejudice), without (i) the disposition
being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee did
not act in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that
Indemnitee had reasonable cause to believe his conduct was unlawful, Indemnitee shall be considered
for the purposes hereof to have been wholly successful with respect thereto.



     4. Notification and Defense of Claim. As a condition precedent to an Indemnitee’s
right to be indemnified, such Indemnitee must notify the Corporation in writing as soon as
practicable of any action, suit, proceeding or investigation involving such Indemnitee for which
indemnity will or could be sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to participate therein at
its own expense and/or to assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to Indemnitee. After notice from the Corporation to Indemnitee of its



 









 




election so to assume such defense, the Corporation shall not be liable to Indemnitee for any
legal or other expenses subsequently incurred by Indemnitee in connection with such action, suit,
proceeding or investigation, other than as provided below in this Section 4. Indemnitee shall have
the right to employ his or her own counsel in connection with such action, suit, proceeding or
investigation, but the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the Corporation, (ii) counsel to
Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Corporation and Indemnitee in the conduct of the defense of such
action, suit, proceeding or investigation or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit, proceeding or investigation, in each of which
cases the fees and expenses of counsel for Indemnitee shall be at the expense of the Corporation,
except as otherwise expressly provided by this Article. The Corporation shall not be entitled,
without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above. The Corporation shall not be required to indemnify Indemnitee
under this Article EIGHTH for any amounts paid in settlement of any action, suit, proceeding or
investigation effected without its written consent. The Corporation shall not settle any action,
suit, proceeding or investigation in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee’s written consent. Neither the Corporation nor Indemnitee will
unreasonably withhold or delay its consent to any proposed settlement.




     5. Advance of Expenses. In the event that the Corporation does not assume the defense
pursuant to Section 4 of this Article EIGHTH of any action, suit, proceeding or investigation of
which the Corporation receives notice under this Article, any expenses (including attorneys’ fees)
incurred by or on behalf of Indemnitee in defending an action, suit, proceeding or investigation or
any appeal therefrom shall be paid by the Corporation in advance of the final disposition of such
matter; provided, however, that the payment of such expenses incurred by or on behalf of Indemnitee
in advance of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of Indemnitee to repay all amounts so advanced in the event that it
shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Corporation
as authorized in this Article. Such undertaking shall be accepted without reference to the
financial ability of Indemnitee to make such repayment.



     6. Procedure for Indemnification. In order to obtain indemnification pursuant to
Section 1, 2 or 3 of this Article EIGHTH, an Indemnitee shall submit to the Corporation a written
request. Any such indemnification shall be made promptly, and in any event within 30 days after
receipt by the Corporation of the written request of Indemnitee, unless the Corporation determines
within such 30-day period that Indemnitee did not meet the applicable standard of conduct set forth
in Section 1 or 2 of this Article EIGHTH, as the case may be. Any such indemnification, unless
ordered by a court, shall be made with respect to requests under Section 1 or 2 only as authorized
in the specific case upon a determination by the Corporation that the indemnification of Indemnitee
is proper because Indemnitee has met the applicable standard of conduct set forth in Section 1 or
2, as the case may be. Such determination shall be made in each instance (a) by a majority vote of
the directors of the Corporation consisting of



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persons who are not at that time parties to the action, suit or proceeding in question
(“Disinterested Directors”), whether or not a quorum, (b) by a committee of Disinterested Directors
designated by majority vote of Disinterested Directors, whether or not a quorum, (c) if there are
no Disinterested Directors, or if the Disinterested Directors so direct, by independent legal
counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation) in a
written opinion, or (d) by the stockholders of the Corporation.




     7. Remedies. The right to indemnification or advancement of expenses as granted by
this Article shall be enforceable by Indemnitee in any court of competent jurisdiction. Neither
the failure of the Corporation to have made a determination prior to the commencement of such
action that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation pursuant to Section
6 of this Article EIGHTH that Indemnitee has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that Indemnitee has not met the applicable standard
of conduct. Indemnitee’s expenses (including attorneys’ fees) reasonably incurred in connection
with successfully establishing Indemnitee’s right to indemnification, in whole or in part, in any
such proceeding shall also be indemnified by the Corporation.



     8. Limitations. Notwithstanding anything to the contrary in this Article, except as
set forth in Section 7 of this Article EIGHTH, the Corporation shall not indemnify an Indemnitee
pursuant to this Article EIGHTH in connection with a proceeding (or part thereof) initiated by such
Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation.
Notwithstanding anything to the contrary in this Article, the Corporation shall not indemnify an
Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the
event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is
subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund
indemnification payments to the Corporation to the extent of such insurance reimbursement;
provided, however, that nothing contained in this Section 8 shall be construed to require any
Indemnitee to seek reimbursement under any insurance policy.



     9. Subsequent Amendment. No amendment, termination or repeal of this Article or of
the relevant provisions of Delaware law or any other applicable laws shall affect or diminish in
any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any actions,
transactions or facts occurring prior to the final adoption of such amendment, termination or
repeal.



     10. Other Rights. The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common or statutory),
agreement or vote of stockholders or Disinterested Directors or otherwise, both as to action in
Indemnitee’s official capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of Indemnitee.
Nothing contained in this Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth in this Article. In addition,



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the Corporation may, to the extent authorized from time to time by its Board of Directors,
grant indemnification rights to other employees or agents of the Corporation or other persons
serving the Corporation and such rights may be equivalent to, or greater or less than, those set
forth in this Article.




     11. Partial Indemnification. If an Indemnitee is entitled under any provision of this
Article to indemnification by the Corporation for some or a portion of the expenses (including
attorneys’ fees), judgments, fines or amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with any action, suit, proceeding or investigation and
any appeal therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such expenses (including attorneys’ fees),
judgments, fines or amounts paid in settlement to which Indemnitee is entitled.



     12. Insurance. The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) against any expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under Delaware law.



     13. Savings Clause. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify
each Indemnitee as to any expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement in connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the Corporation, to the
fullest extent permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.



     14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i)
of the General Corporation Law of the State of Delaware shall have the respective meanings assigned
to such terms in such Section 145(h) and Section 145(i).



     NINTH: This Article is inserted for the management of the business and for the conduct of the
affairs of the Corporation.



     1. General Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Corporation’s Board of Directors.



     2. Number of Directors; Election of Directors. Subject to the rights of holders of
any series of Preferred Stock to elect directors, the number of directors of the Corporation shall
be established from time to time by the Board of Directors. Election of directors need not be by
written ballot, except as and to the extent provided in the Bylaws of the Corporation.



     3. Classes of Directors. Subject to the rights of holders of any series of Preferred
Stock to elect directors, the Board of Directors shall be and is divided into three classes: Class
I, Class II and Class III.



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     4. Terms of Office. Subject to the rights of holders of any series of Preferred Stock
to elect directors, each director shall serve for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected; provided, that each
director initially appointed to Class I shall serve for a term expiring at the Corporation’s annual
meeting of stockholders held in 2005; each director initially appointed to Class II shall serve for
a term expiring at the Corporation’s annual meeting of stockholders held in 2006; and each director
initially appointed to Class III shall serve for a term expiring at the Corporation’s annual
meeting of stockholders held in 2007; provided further, that the term of each director shall
continue until the election and qualification of his successor and be subject to his earlier death,
resignation or removal.



     5. Quorum. The greater of (a) a majority of the directors at any time in office and
(b) one-third of the number of directors fixed pursuant to Section 2 of this Article NINTH shall
constitute a quorum. If at any meeting of the Board of Directors there shall be less than such a
quorum, a majority of the directors present may adjourn the meeting from time to time without
further notice other than announcement at the meeting, until a quorum shall be present.



     6. Action at Meeting. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be regarded as the act
of the Board of Directors unless a greater number is required by law or by this Certificate of
Incorporation.



     7. Removal. Subject to the rights of holders of any series of Preferred Stock,
directors of the Corporation may be removed only for cause and only by the affirmative vote of the
holders of at least seventy-five percent (75%) of the votes which all the stockholders would be
entitled to cast in any annual election of directors or class of directors.



     8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any
vacancy or newly created directorships in the Board of Directors, however occurring, shall be
filled only by vote of a majority of the directors then in office, although less than a quorum, or
by a sole remaining director and shall not be filled by the stockholders. A director elected to
fill a vacancy shall hold office until the next election of the class for which such director shall
have been chosen, subject to the election and qualification of a successor and to such director’s
earlier death, resignation or removal.



     9. Stockholder Nominations and Introduction of Business, Etc. Advance notice of
stockholder nominations for election of directors and other business to be brought by stockholders
before a meeting of stockholders shall be given in the manner provided by the Bylaws of the
Corporation.



     10. Amendments to Article. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any
annual election of directors or class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article NINTH.



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     TENTH: Stockholders of the Corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provisions of law, this Certificate of Incorporation or the
Bylaws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast in any annual election of directors or class
of directors shall be required to amend or repeal, or to adopt any provision inconsistent with,
this Article TENTH.



     ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at any
time by the Board of Directors, the Chairman of the Board or the Chief Executive Officer, but such
special meetings may not be called by any other person or persons. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting. Notwithstanding any other provision of law, this Certificate of
Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article ELEVENTH.



     IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which restates, integrates and
amends the certificate of incorporation of the Corporation, and which has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, has
been executed by its duly authorized officer
this 8th day
of April, 2004.



	 	 	 	 	 
	 	Memory Pharmaceuticals Corp.

 	 
	 	By:  	/s/
Tony Scullion	 
	 	 	Name:  	Tony Scullion	 
	 	 	Title:  	Chief Executive Officer 	 
	 




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