**EXHIBIT 10.26**

 

**EXECUTION COPY**

 

**PURCHASE AGREEMENT**

 

**PURCHASE AGREEMENT** dated as of September 18, 2003, among 454Corporation, a Delaware corporation (the “*Company*”), CuraGen Corporation (“CuraGen”) and the several purchasers named in the attached *Schedule 1* (individually a “*Purchaser*” and collectivelythe “*Purchasers*”). 

 

**WHEREAS**, (A) theCompany wishes to issue and sell to CuraGen 6,404,854 shares of the Company’s authorized but unissued Series C Preferred Stock, $0.01 par value per share (the “Series C Preferred Stock”), and (B) the Company wishes to issue and sellto the Purchasers up to an aggregate of 1,595,146 shares of the Company’s authorized but unissued Series D Preferred Stock, $0.01 par value per share (the “Series D Preferred Stock”); and 

 

**WHEREAS**, CuraGen wishes to purchase the Series C Preferred Stock onthe terms and subject to the conditions set forth in this Agreement; and 

 

**WHEREAS**, the Purchasers, severally, wish to purchase the Series D Preferred Stock on the terms and subject to the conditions set forth in this Agreement; 

 

**NOW**,**THEREFORE**, in consideration of the premises and the mutualcovenants contained in this Agreement, the parties agree as follows: 

 

**§1. THE SERIES C PREFERRED STOCK AND THE SERIES D PREFERRED STOCK**

 

§1.01. *Issuance, Sale and Delivery of the Series C Preferred Stock and the Series D Preferred Stock.* Subject to the terms and conditions hereinafter set forth, (A) the Company hereby agrees to issueand sell to CuraGen and CuraGen hereby agrees to purchase from the Company, 6,404,854 shares of Series C Preferred Stock at the purchase price of $2.50 per share; and (B) the Company hereby agrees to issue and sell to each Purchaser listed on*Schedule 1*, and each such Purchaser hereby agrees to purchase from the Company, the number of shares of Series D Preferred Stock set forth opposite the name of such Purchaser under the heading “Shares of 454 Corporation Series DPreferred Stock to be Purchased” on *Schedule 1*, at the purchase price of $2.50 per share. 

 

§1.02. *Closing.* The closing shall take place, with executed documents transmitted via telecopy on September 18, 2003, or at such otherdate and time as may be agreed upon among the Purchasers, the Company and CuraGen (such closing being called the “*Closing*” and such date and time being called the “*Closing Date*”). At the Closing, the Company shall(i) issue and deliver to CuraGen a stock certificate, registered in the name of CuraGen, representing 6,404,854 shares of Series C Preferred Stock and (ii) issue and deliver to each Purchaser a stock certificate or certificates, registered in thename of such Purchaser, representing the number of shares of Series D Preferred Stock set forth opposite the name of such Purchaser under the headings “Shares of 454 Corporation Series D Preferred Stock to be Purchased” on *Schedule1*. 

 

§1.03. *Payment of Purchase Price.* (A) As payment in full for the Series C PreferredStock being purchased by it at the Closing, and against delivery of the stock certificate therefor as aforesaid, on the Closing Date for such Closing CuraGen shall deliver to the Company an amount equal to $2.50 for each share of Series C PreferredStock being purchased by CuraGen at such Closing. 

 

(B) Aspayment in full for the Series D Preferred Stock being purchased by it at the Closing, and against delivery of the stock certificates therefor as aforesaid, on the Closing Date for such Closing each Purchaser listed on *Schedule 1* shalldeliver to the Company an amount equal to $2.50 for each share of Series D Preferred Stock being purchased by such Purchaser at such Closing. 

 

(C) The payments in Sections 1.03(A) and (B) to the Company shall be referred to collectively as the “*Purchase Price.*” Payment of thePurchase Price shall be made by wire transfer in immediately available funds to the account of the Company. 

 

**§2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY**

 

The Company represents and warrants to the Purchasers that, except as set forth in the Disclosure Schedules attached hereto: 

 

§2.01. *Organization, Qualification and Corporate Power*.The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company is duly licensed or qualified in each jurisdiction in which the nature of the business transacted by itrequires such licensing or qualification, unless the failure to so qualify does not have a material adverse effect on the business operations or financial condition of the Company. The Company has the corporate power and authority to own and holdits properties and to carry on its business as now conducted and as proposed to be conducted, to execute, deliver and perform this Agreement, the Amended and Restated Registration Rights Agreement to be dated as of the Closing Date by and among theCompany and the other parties thereto (the “*Registration Rights Agreement*”), the Waiver and Amendment No. 1 to the Purchase Agreement to be dated as of the Closing Date by and among the Company and the other parties thereto (the“*Waiver Agreement*”) and, upon the due filing of the Charter (defined below), to issue, sell and deliver the Series C Preferred Stock and the Series D Preferred Stock and to issue and deliver the shares of Common Stock, $0.01 parvalue per share, of the Company (“*Common Stock*”) issuable upon conversion of the Series C Preferred Stock and Series D Preferred Stock (the “*Conversion Shares*”). 

 

§2.02. *Authorization of Agreements, etc*. 

 

(a) The execution and delivery by the Company of thisAgreement, the Registration Rights Agreement and the Waiver Agreement, the performance by the Company of its obligations hereunder and thereunder, the issuance, sale and delivery of the Series C Preferred Stock and Series D Preferred Stock and theissuance and delivery of the Conversion Shares have been duly authorized by all requisite corporate action and will not violate any provision of law, any order of any court or other agency of government, the Certificate of Incorporation of theCompany, as amended by the 

 

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Restated Certificate of Incorporation in the form attached hereto as *Exhibit A* (as so amended, the “*Charter*”), or the By-lawsof the Company, or any provision of any indenture, agreement or other instrument to which the Company, any of its subsidiaries or any of their respective properties or assets is bound, or conflict with, result in a breach of or constitute (with duenotice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge, restriction, claim or encumbrance of any nature whatsoever upon any of the properties orassets of the Company or any of its subsidiaries. 

 

(b) Upon the filing of the Charter, the Series C Preferred Stock and Series D Preferred Stock will have been duly authorized and, when issued in accordance with this Agreement, will be validly issued, fully paid and nonassessable shares ofSeries C Preferred Stock and Series D Preferred Stock with no personal liability attaching to the ownership thereof and will be free and clear of all liens, charges, restrictions, claims and encumbrances. Upon the filing of the Charter, theConversion Shares will have been duly reserved for issuance upon conversion of the Series C Preferred Stock and Series D Preferred Stock and, when so issued, will be duly authorized, validly issued, fully paid and nonassessable shares of CommonStock with no personal liability attaching to the ownership thereof and will be free and clear of all liens, charges, restrictions, claims and encumbrances. Neither the issuance, sale nor delivery of the Series C Preferred Stock and the Series DPreferred Stock nor the issuance or delivery of the Conversion Shares is subject to any preemptive right of stockholders of the Company or to any right of first refusal or other right in favor of any person. 

 

(c) *Validity.* This Agreement, the RegistrationRights Agreement and the Waiver Agreement have been duly executed and delivered by the Company and each constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms. 

 

(d) *Authorized Capital Stock*. Upon the filingof the Charter the authorized capital stock of the Company shall consist of (i) 38,000,000 shares of Preferred Stock, $0.01 par value (the “*Preferred Stock*”), of which (a) 12,000,000 shares have been designated Series A PreferredStock, $0.01 par value per share (the “Series A Preferred Stock”), and are issued and outstanding, (b) 8,000,000 shares have been designated Series B Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”),and are issued and outstanding, (c) 6,404,854 shares have been designated Series C Preferred Stock and will be issued and outstanding following the Closing, (d) 1,595,146 shares have been designated Series D Preferred Stock and will be issued andoutstanding following the Closing and (e) 10,000,000 shares remain undesignated and (ii) 48,000,000 shares of Common Stock. 47,933 shares of Common Stock are issued or outstanding. *Schedule 2.02* attached hereto sets forth the summarycapitalization table of the Company. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and series of authorized capital stock of the Company are as set forth in the Charter, a copyof which is attached as *Exhibit A*, and all such designations, powers, preferences, rights, qualifications, limitations and restrictions, upon the filing of the Charter, will be valid, binding and enforceable and in accordance with allapplicable laws. Except as set forth above or in the attached *Schedule 2.02*, (i) no person 

 

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owns of record or is known to the Company to own beneficially any share of Common Stock or Preferred Stock, (ii) no subscription, warrant, option,convertible security, or other right (contingent or other) to purchase or otherwise acquire from the Company (or from any other person or entity) any equity securities of the Company is authorized or outstanding and (iii) there is no commitment bythe Company to issue shares, subscriptions, warrants, options, convertible securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset. Except as provided for in the Charter oras set forth in the attached *Schedule 2.02*, the Company has no obligation (contingent or other) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any otherdistribution in respect thereof. There are no voting trusts or agreements, stockholders’ agreements, pledge agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to any securities of the Company or anyof its subsidiaries (whether or not the Company or any of its subsidiaries is a party thereto). All of the outstanding securities of the Company were issued in compliance with all applicable federal and state securities laws. 

 

§2.03. *Litigation, Compliance with Law*. There is no (i)action, suit, claim, proceeding or investigation pending or, to the best of the Company’s knowledge, threatened against or affecting the Company, at law or in equity, or before or by any Federal, state, municipal or other governmentaldepartment, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) arbitration proceeding relating to the Company pending under collective bargaining agreements or otherwise, or (iii) governmental inquiry pending or, to thebest of the Company’s knowledge, threatened against or affecting the Company (including without limitation any inquiry as to the qualification of the Company to hold or receive any license or permit), and, to the best of the Company’sknowledge, there is no basis for any of the foregoing. The Company is not in default with respect to any order, writ, injunction or decree known to or served upon the Company of any court or of any Federal, state, municipal or other governmentaldepartment, commission, board, bureau, agency or instrumentality, domestic or foreign. There is no action or suit by the Company pending or threatened against others. To the best of the Company’s knowledge, the Company has complied in allmaterial respects with all laws, rules, regulations and orders applicable to its business, operations, properties, assets, products and services, and the Company has all necessary permits, licenses and other authorizations required to conduct itsbusiness as conducted and as proposed to be conducted. There is no existing law, rule, regulation or order, and the Company is not aware of any proposed law, rule, regulation or order, whether Federal or state, which would prohibit or restrict theCompany from, or otherwise materially adversely affect the Company in, conducting its business in any jurisdiction in which it is now conducting business or in which it proposes to conduct business. 

 

§2.04. *Title to Properties*. The Company has good andmarketable title to all of its properties and assets, and all such properties and assets are free and clear of mortgages, pledges, security interests, liens, charges, claims, restrictions and other encumbrances, except for liens for or current taxesnot yet due and payable and minor imperfections of title, if any, not material in nature or amount and not materially detracting from the value or impairing the use of the property subject thereto or impairing the operations or proposed operationsof the Company. 

 

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§2.05. *Taxes*. The Company has filed all tax returns, Federal, state, county and local,required to be filed by it, and the Company has paid all taxes shown to be due by such returns as well as all other taxes, assessments and governmental charges which have become due or payable, including without limitation all taxes which theCompany is obligated to withhold from amounts owing to employees, creditors and third parties. There is no tax lien, whether imposed by any Federal, state, county or local taxing authority, outstanding against the assets, properties or business ofthe Company. 

 

§2.06. *Other Agreements*. TheCompany is in full compliance with all of the terms and provisions of its Charter, By-laws and any agreement, instrument, judgment, decree, order, statute, rule or government regulation applicable to the Company or to which the Company is a party,where any violation, noncompliance or default would materially and adversely affect or could materially and adversely affect the business, prospects, financial condition, operations, property or affairs of the Company or any of its subsidiaries.

 

§2.07. *Governmental Approvals*. Subject tothe accuracy of the representations and warranties of CuraGen and the Purchasers set forth in Section 3, no registration or filing with, or consent or approval of or other action by, any Federal, state or other governmental agency or instrumentalityis or will be necessary for the valid execution, delivery and performance by the Company of this Agreement, the Registration Rights Agreement or the Waiver Agreement, the issuance, sale and delivery of the Series C Preferred Stock and Series DPreferred Stock or, upon conversion thereof, the issuance and delivery of the Conversion Shares, other than filings pursuant to federal and state securities laws in connection with the sale of the Series C Preferred Stock and Series D PreferredStock. 

 

§2.08. *Disclosure*. TheCompany’s representations and warranties in this Agreement and in the Schedules and Exhibits to this Agreement, do not contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained herein ortherein not misleading. None of the statements, documents, certificates or other items prepared or supplied by the Company with respect to the transactions contemplated hereby contains an untrue statement of a material fact or omits a material factnecessary to make the statements contained therein not misleading. There is no fact which the Company has not disclosed to CuraGen and the Purchasers and their counsel in writing and of which the Company is aware which materially and adverselyaffects or could materially and adversely affect the business, prospects, financial condition, operations, property or affairs of the Company or any of its subsidiaries. 

 

§2.09. *Offering of the Series C Preferred Stock and Series D Preferred Stock*. Neither the Company nor anyperson authorized or employed by the Company as agent, broker, dealer or otherwise in connection with the offering or sale of the Series C Preferred Stock and Series D Preferred Stock or any security of the Company similar to the Series C PreferredStock and Series D Preferred Stock has offered the Series C Preferred Stock or the Series D Preferred Stock or any such similar security for sale to, or solicited any offer to buy the Series C Preferred Stock or the Series D Preferred Stock or anysuch similar security from, or otherwise approached or negotiated with respect thereto with, any person or persons, and neither the Company nor any person acting on its behalf has taken or will take any other action (including, without limitation,any offer, issuance or sale of any security of the Company under circumstances which might 

 

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require the integration of such security with Series C Preferred Stock or Series D Preferred Stock under the Securities Act or the rules and regulations ofthe Commission thereunder), in either case so as to subject the offering, issuance or sale of the Series C Preferred Stock or the Series D Preferred Stock to the registration provisions of the Securities Act. 

 

§2.10. *Brokers*. The Company has no contract, arrangementor understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement. 

 

§2.11. *Ownership and Nondisclosure Agreement*. Each employee, consultant and contractor of the Company identified on *Schedule2.11* has entered into and executed a Ownership and Nondisclosure Agreement in the form attached to this Agreement as *Exhibit B* or an employment or consulting agreement containing substantially similar terms. 

 

§2.12. *Status of Proprietary Assets*. 

 

(a) Ownership. To the best of its knowledge andexcept as set forth on *Schedule 2.12(a)*, the Company has full title and ownership of, or has license to, all patents, patent applications, trademarks, service marks, trade names, copyrights, moral rights, mask works, trade secrets,confidential and proprietary information, compositions of matter, formulas, designs, proprietary rights, know-how and processes (all of the foregoing collectively referred to as the “Proprietary Assets”) necessary to enable it tocarry on its business as now conducted and as presently proposed to be conducted, without any conflict with or infringement of the rights of others. A complete list of all the Company’s material Proprietary Assets is set forth on *Schedule2.12(b)* to this Agreement. Except as set forth on *Schedule 2.12(a)*, to the best of the Company’s knowledge, no third party has any ownership right, title, interest, claim in or lien on any of the Company’s ProprietaryAssets and the Company has taken commercially reasonable steps necessary to preserve its legal rights in, and the secrecy of, all its Proprietary Assets, except those for which disclosure is required for legitimate business or legal reasons.

 

(b) Licenses; Other Agreements. Exceptas set forth on *Schedule 2.12(a)*, the Company has not granted, and, there are not outstanding, any options, licenses or agreements of any kind relating to any Proprietary Asset of the Company, nor, except as set forth on *Schedule2.12(a)*, is the Company bound by or a party to any option, license or agreement of any kind with respect to any of its Proprietary Assets. Except as set forth on *Schedule 2.12(a)*, the Company is not obligated to pay anyroyalties or other payments to third parties with respect to the marketing, sale, distribution, manufacture, license or use of any Proprietary Assets or any other property or rights. 

 

(c) No Infringement. To the best of the Company’s knowledge, the Company has not violated orinfringed, and is not currently violating or infringing, and the Company has not received any communications alleging that the Company (or any of its employees or consultants) has violated or infringed or, by conducting its business as proposed,would violate or infringe, any Proprietary Asset of any other person or entity. 

 

(d) No Breach by Employee. The Company is not aware that any employee or consultant of the Company is obligated under any agreement(including licenses, covenants or commitments of any nature) or subject to any judgment, decree or order of any 

 

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court or administrative agency, or any other restriction that would interfere with the use of his or her best efforts to carry out his or her duties for theCompany or to promote the interests of the Company or that would conflict with the Company’s business as proposed to be conducted. The carrying on of the Company’s business by the employees and contractors of the Company and the conduct ofthe Company business as presently proposed, will not, to the best of the Company’s knowledge, conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrumentunder which any of such employees or contractors or the Company is now obligated. The Company does not believe it is or will be necessary to utilize any inventions of any employees of the Company (or persons the Company currently intends to hire)made prior to their employment by the Company which have not otherwise become property of the Company. At no time during the conception of or reduction of any of the Proprietary Assets to practice was any developer, inventor or other contributor tosuch patents operating under any grants from any governmental entity or agency or private source, performing research sponsored by any governmental entity or agency or private source or subject to any employment agreement or invention assignment ornondisclosure agreement or other obligation with any third party that could adversely affect the Company’s rights in such Proprietary Assets. 

 

§2.13. *Financial Statements*. 

 

(a) The Company has delivered to the Purchasers (a) audited balance sheets of the Company as of December 31 in each of the years 2001 and2002 (such 2002 balance sheet, including the notes thereto, is referred to herein as the “Balance Sheet”), and the related audited statements of income, changes in stockholders’ equity and cash flow and the notes thereto for each ofthe fiscal years then ended, together with the report thereon of the Company’s independent certified public accountants, and (b) an unaudited balance sheet of the Company as of June 30, 2003 (the “Interim Balance Sheet”) and therelated unaudited statements of income, changes in stockholders’ equity, and cash flow for the six months then ended, which have been reviewed by the Company’s independent certified public accountants in the context of reviewingCuraGen’s quarterly report on Form 10-Q. Such financial statements and notes fairly present the financial condition and the results of operations, changes in stockholders’ equity and cash flow of the Company as of the respective dates ofand for the periods referred to in such financial statements, all in accordance with GAAP, subject, in the case of interim financial statements, to normal recurring year-end adjustments (the effect of which will not, individually or in theaggregate, be materially adverse) and the absence of notes (that, if presented, would not differ materially from those included in the Balance Sheet); the financial statements referred to in this Section 2.13 reflect the consistent application ofsuch accounting principles throughout the periods involved, except as disclosed in the notes to such financial statements. No financial statements of any person other than the Company are required by GAAP to be included in the financial statementsof the Company. 

 

(b) Except as disclosed in*Schedule 2.13(b)* hereto, the Company has no liabilities or obligations of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) except for liabilities or obligations reflected or reserved against theBalance Sheet or the Interim Balance Sheet and current liabilities incurred in the ordinary course of business since the respective dates thereof. 

 

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(c) Since the date of the Balance Sheet, there has not been any material adverse changein the business, operations, properties, prospects, assets or condition of the Company, and no event has occurred or circumstance exists that may result in such a material adverse change. 

 

**§3. REPRESENTATIONS AND WARRANTIES OF CURAGEN AND THE PURCHASERS**

 

For the purposes of this Section 3, the term “Purchaser” shallinclude CuraGen. Each Purchaser severally represents and warrants to the Company that: 

 

(a) such Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities; 

 

(b) such Purchaser has sufficient knowledge andexperience in investing in companies similar to the Company in terms of the Company’s stage of development so as to be able to evaluate the risks and merits of such Purchaser’s investment in the Company and such Purchaser is ablefinancially to bear the risks thereof; 

 

(c)such Purchaser has had an opportunity to discuss the Company’s business, management and financial affairs with the management of the Company; 

 

(d) the securities being purchased by such Purchaser are being acquired for such Purchaser’s own account for the purpose ofinvestment and not with a view to or for sale in connection with any distribution thereof; and 

 

(e) such Purchaser understands that (i) the securities (the Series C Preferred Stock, the Series D Preferred Stock and the ConversionShares) have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof or Rule 506 promulgated under the Securities Act,(ii) the Series C Preferred Stock and Series D Preferred Stock and, upon conversion or exercise thereof, the Conversion Shares, must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act or is exemptfrom such registration, (iii) each of the shares of Series C Preferred Stock, the shares of Series D Preferred Stock and the Conversion Shares will bear a legend to such effect and (iv) the Company will make a notation on its transfer books to sucheffect. 

 

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**§4. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS**

 

The obligation of CuraGen and each Purchaser to purchase and pay for SeriesC Preferred Stock or Series D Preferred Stock to be purchased by it on a Closing Date is, at CuraGen or such Purchaser’s option, subject to the satisfaction, on or before such Closing Date, of the following conditions: 

 

§4.01. *Opinion of Company’s Counsel.* CuraGen and thePurchasers shall have received from Day, Berry & Howard LLP, counsel for the Company, an opinion dated the Closing Date, substantially in the form of *Exhibit C* attached to this Agreement. 

 

§4.02. *All Proceedings to be Satisfactory.* All corporateand other proceedings to be taken by the Company in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to CuraGen, the Purchasers and their respective counsel, andCuraGen, the Purchasers and their respective counsel shall have received all such counterpart originals or certified or other copies of such documents as they reasonably may request. 

 

§4.03. *Supporting Documents.* CuraGen, the Purchasers and their respective counsel shall have receivedcopies of the following documents: 

 

(a) acertificate of the Secretary of State of the State of Delaware dated as of a recent date as to the existence and good standing of the Company; 

 

(b) a certificate of the Chief Executive Officer of the Company, on behalf of the Company, dated the Closing Date and certifying: (i) thatattached thereto is a true and complete copy of the Charter and Bylaws of the Company as in effect on the date of such certification; (ii) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors of theCompany authorizing the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Waiver Agreement, the designation, issuance, sale and delivery of the Series C Preferred Stock and the Series D Preferred Stockand the reservation, issuance and delivery of the Conversion Shares, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; (iii) each of therepresentations and warranties as set forth in Section 2 hereof is true and correct in all material respects except for those representations or warranties that are qualified by materiality or material adverse effect, and each of the representationsand warranties as set forth in Section 2 hereof that is qualified by materiality or material adverse effect is true and correct in all respects; and 

 

(c) such additional supporting documents and other information with respect to the operations and affairs of the Company as CuraGen, thePurchasers or their respective counsel reasonably may request. 

 

§4.04. *Registration Rights Agreement.* The Company and each of the other parties thereto (other than CuraGen and the Purchaser) shall have executed and delivered the Registration Rights Agreement in the form attachedhereto as *Exhibit D*. 

 

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§4.05. *Waiver Agreement.* The Company and each of the other parties thereto (other thanCuraGen and the Purchaser) shall have executed and delivered the Waiver Agreement in the form attached hereto as *Exhibit E*. 

 

Such document required under this Section 4 shall be satisfactory in form and substance to CuraGen, the Purchasers and their respective counsel.

 

**§5. COVENANTS OF THE COMPANY**

 

For the purposes of this Section 5, the term “Purchaser” shallinclude CuraGen. The Company covenants and agrees with each of the Purchasers that so long as such Purchaser owns any of the Series C Preferred Stock, Series D Preferred Stock or Conversion Shares, and until such time as the completion of anunderwritten public offering of the Company’s securities pursuant to which the aggregate price paid by the public for the purchase of securities is at least $30,000,000 (the “*Initial Public Offering*”) shall have occurred:

 

§5.01. *Financial Statements, Reports, etc*.The Company shall furnish to each Purchaser: 

 

(a) within ninety (90) days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its subsidiaries as of the end of such fiscal year and the related consolidated statements of income,stockholders’ equity and cash flows for the fiscal year then ended, prepared in accordance with generally accepted accounting principles and audited by a firm of independent public accountants of recognized national standing selected by theBoard of Directors of the Company and reasonably acceptable to the Purchasers; and 

 

(b) within forty-five (45) days after the end of each fiscal quarter in each fiscal year (other than the last fiscal quarter in eachfiscal year), a consolidated balance sheet of the Company and its subsidiaries and the related consolidated statements of income, stockholders’ equity and cash flows, unaudited but prepared in accordance with generally accepted accountingprinciples and certified by the Chief Financial Officer of the Company, such consolidated balance sheet to be as of the end of such fiscal quarter and such consolidated statements of income, stockholders’ equity and cash flows to be for suchfiscal quarter and for the period from the beginning of the fiscal year to the end of such fiscal quarter, in each case with comparative statements for the corresponding period in the prior fiscal year. 

 

§5.02. *Corporate Existence*. The Company shall maintain andcause each of its subsidiaries to maintain their respective corporate existence, rights and franchises in full force and effect. 

 

§5.03. *Properties, Business, Insurance*. The Company shall maintain and cause each of its subsidiaries to maintain as to theirrespective properties and business, with financially sound and reputable insurers, insurance against such casualties and contingencies and of such types and in such amounts as is customary for companies similarly situated, which insurance shall bedeemed by the Company to be sufficient. 

 

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§5.04. *Inspection, Consultation and Advice*. The Company shall permit and cause each ofits subsidiaries to permit each Purchaser and such persons as it may designate, at such Purchaser’s expense, to visit and inspect any of the properties of the Company and its subsidiaries, examine their books and take copies and extractstherefrom, discuss the affairs, finances and accounts of the Company and its subsidiaries with their officers, employees and public accountants (and the Company hereby authorizes said accountants to discuss with such Purchaser and such designeessuch affairs, finances and accounts), and consult with and advise the management of the Company and its subsidiaries as to their affairs, finances and accounts, all at reasonable times and upon reasonable notice. 

 

§5.05. *Keeping of Records and Books of Account*. TheCompany shall keep, and cause each subsidiary to keep, adequate records and books of account, in which complete entries will be made in accordance with generally accepted accounting principles consistently applied, reflecting all financialtransactions of the Company and such subsidiary, and in which, for each fiscal year, all proper reserves for depreciation, depletion, obsolescence, amortization, taxes, bad debts and other purposes in connection with its business shall be made.

 

§5.06. *Payment of Taxes.*The Company shallpay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income, profits or business, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claimswhich, if unpaid, might become alien or charge upon any properties of the Company, provided that the Company shall not be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by appropriateproceedings if the Company shall have set aside on its books sufficient reserves, if any, with respect thereto, or where the failure to so pay materially and adversely affects or could materially and adversely affect the business, prospects,financial condition, operations, property or affairs of the Company or any of its subsidiaries. 

 

**§6. OBSERVER RIGHTS**

 

§6.01. *Termination of Existing Observer Rights*. The group consisting of CLSP, L.P., CLSP II, L.P., CLSP-SBS I, L.P. and CLSP-SBS II,L.P. (collectively, the “*Casdin Group*”) hereby waive for all time any and all rights it (or any of its successors) had or have under Section 7 of that certain Purchase Agreement dated as of June 6, 2000 among the Company, CuraGenand the Purchasers (as defined therein) (the “Series B Purchase Agreement”). 

 

§6.02.*****Appointment of Observer*. The Casdin Group shall have the right to agree upon and designate, in a non-voting observer capacity, one representative of the Casdin Group reasonablyacceptable to the Company (“*Designee*”) to attend and observe all meetings of the Company’s Board of Directors (the “*Board*”) (whether in person, telephonic or otherwise) and such Designee shall be entitled toreceive notices of and to attend meetings of the Board, concurrently with the members of the Board, and in the same manner. If the Designee is unable to attend a Board meeting, the Casdin Group shall have the right to select a replacement Designeereasonably acceptable to the Company to attend in its place. The right to attend the Board meetings and receive the information described herein shall not apply to (i) the presentation of information or discussions at Board meetings involvingmatters which, if provided to or attended by the Designee, or its affiliates (including the Casdin Group entities or 

 

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their affiliates), would in the reasonable opinion of counsel to the Company, jeopardize the attorney client privilege that would otherwise be afforded tosuch information or meeting or (ii) any particular matter in which the Designee or its affiliates (including the Casdin Group entities or their affiliates) have an interest that in the determination of a majority of the Board conflicts with thebusiness of the Company. The Casdin Group agrees, and shall cause any Designee to agree in writing prior to attending any meeting of the Board (whether in person, telephonic or otherwise), not to (i) use (for any purpose other than monitoring itsinvestment in the Company) or (ii) reveal to any person or entity (including any entity or employee of such entity in which the Casdin Group entities and their affiliates has an equity interest) outside of the Casdin Group any confidentialinformation learned as a result of the rights granted by this Section 6.02 concerning the organization, business or finances of the Company or any information concerning a third party which the Company is under a duty to keep confidential.

 

§6.03 *Termination of Observer Rights*. Theobserver rights granted to the Casdin Group in Section 6.02 shall terminate and be of no further force or effect immediately prior to the earliest to occur of: 

 
 (a) the effective date of the registration statement relating to an Initial Public Offering; or 
 
 (b) the consummation of the sale of all, or substantially all, of the Company’s assets or capital stock, either through a direct sale, merger, reorganization, consolidation orother form of business combination or acquisition in which the Company is the target of such acquisition and/or voting control of the equity securities of the Company is transferred to a third party unaffiliated with the Company.
 

Furthermore, the observer rights granted to theCasdin Group in Section 6.02 shall terminate and be of no further force or effect upon the earliest to occur of: 

 
 (a) such time as the Casdin Group holds less than 50% of the Series B Preferred Stock and Series D Preferred Stock, taken as a whole, it purchased pursuant to the Series B PurchaseAgreement (with respect to such Series B Preferred Stock) and this Agreement (with respect to such Series D Preferred Stock); or 
 
 (b) such time as a director, officer or employee of the Casdin Group or their affiliates becomes a member of the Board. 
 

12 

**§7. TAG-ALONG RIGHTS**

 

§7.01. *Right to Participate in Sale*. 

 

(a) *Opportunity to Participate*. If CuraGen proposes to enter into an agreement to sell or otherwise dispose offor value (such sale or other disposition for value being referred to as a “*Tag-Along Sale*”) more than 3,073,611 shares (as adjusted for any stock dividends, stock splits, recapitalizations, consolidations or the like) of CommonStock in a single or series of transactions, then CuraGen shall afford the holders of shares of the Series B Preferred Stock and Series D Preferred Stock the opportunity to participate proportionately in such Tag-Along Sale (the person(s) beingafforded the opportunity to participate proportionately in such Tag-Along Sale being referred to as the “*Tag-Along Stockholders*”) in accordance with this Section 7. For purposes of this Section 7, the term “*CommonStock*” shall include shares of Common Stock issuable upon the conversion of securities convertible into Common Stock. 

 

(b) *Number of Shares*. The number of shares of Common Stock that each Tag-Along Stockholder will be entitled to include in such Tag-AlongSale (the “*Tag-Along Allotment*”) shall be determined by multiplying (i) the number of shares of Common Stock held by such Tag-Along Stockholder immediately prior to the consummation of the Tag-Along Sale by (ii) a fraction, thenumerator of which shall equal the number of shares of Common Stock proposed to be sold or otherwise disposed of by CuraGen pursuant to the Tag-Along Sale and the denominator of which shall equal the total number of shares of Common Stock that arebeneficially owned by (A) CuraGen and (B) any other holder of shares of Common Stock that had the right to “tag-along” in the Tag-Along Sale on the day immediately prior to the consummation of the Tag-Along Sale Date. 

 

§7.02. *Sale Notice*. CuraGen shall provide each Tag-AlongStockholder and the Company with written notice (the “*Tag-Along Sale Notice*”) not less than 14 days prior to the proposed date of the Tag-Along Sale (the “*Tag-Along Sale Date*”). Each Tag-Along Sale Notice shall beaccompanied by a copy of any agreement relating to the Tag-Along Sale (if available) and shall set forth: (a) the name and address of each proposed purchaser of shares of Common Stock in the Tag-Along Sale; (b) the number of shares of Common Stockproposed to be sold; (c) the proposed amount and form of consideration to be paid for such shares of Common Stock and the terms and conditions of payment offered by each proposed purchaser; (d) the aggregate number of shares of Common Stock held ofrecord by CuraGen as of the close of business on the day immediately preceding the date of the Tag-Along Notice (the “*Tag-Along Notice Date*”); (e) the Tag-Along Stockholder’s Tag-Along Allotment assuming the Tag-AlongStockholder elected to sell the maximum number of shares of Common Stock possible; and (f) the Tag-Along Sale Date. 

 

§7.03. *Tag-Along Notice*. Any Tag-Along Stockholder wishing to participate in the Tag-Along Sale shall provide written notice (the“*Tag-Along Notice*”) to the party proposing the Tag-Along Sale no less than 7 days prior to the Tag-Along Sale Date. The Tag-Along Notice shall set forth the number of shares of Common Stock that such Tag-Along Stockholder elects toinclude in the Tag-Along Sale, which shall not exceed such Tag-Along Stockholder’s Tag-Along Allotment. The Tag-Along Notice given by any Tag-Along Stockholder shall constitute such 

 

13 

Tag-Along Stockholder’s binding agreement to sell the shares of Common Stock specified in the Tag-Along Notice on the terms and conditions applicable tothe Tag-Along Sale; *provided, however*, that in the event that there is any material change in the material terms and conditions of such Tag-Along Sale applicable to the Tag-Along Stockholder (including, but not limited to, any decrease in thepurchase price that occurs other than pursuant to an adjustment mechanism set forth in the agreement relating to the Tag-Along Sale) after such Tag-Along Stockholder gives its Tag-Along Notice, then, notwithstanding anything herein to the contrary,the Tag-Along Stockholder shall have the right to withdraw from participation in the Tag-Along Sale with respect to all of its shares of Common Stock affected thereby. If the proposed purchaser does not consummate the purchase of all of the sharesof Common Stock requested to be included in the Tag-Along Sale by any Tag-Along Stockholder on the same terms and conditions applicable to CuraGen, then CuraGen shall not consummate the Tag-Along Sale of any of its shares of Common Stock to suchpurchaser, unless the shares of CuraGen and the Tag-Along Stockholders are reduced or limited *pro rata* in proportion to the respective number of shares of Common Stock actually sold in any such Tag-Along Sale and all other terms andconditions of the Tag-Along Sale are the same for CuraGen and the Tag-Along Stockholders, subject to the provisions set forth in §7.01. 

 

If a Tag-Along Notice from any Tag-Along Stockholder is not received by the party proposing the Tag-Along Sale prior to the 7 day period specified above,then CuraGen shall have the right to consummate the Tag-Along Sale without the participation of such Tag-Along Stockholder, but only on terms and conditions which are no more favorable in any material respect to CuraGen (and in any event, at nogreater a purchase price) than as stated in the Tag-Along Sale Notice and only if such Tag-Along Sale occurs on a date within 90 days of the Tag-Along Sale Date. If such Tag-Along Sale does not occur within such 90 day period, the shares of CommonStock that were to be subject to such Tag-Along Sale thereafter shall continue to be subject to all of the restrictions contained in this Agreement. 

 

§7.04. *Delivery of Certificates*. On the Tag-Along Sale Date, each Tag-Along Stockholder shall deliver a certificate or certificates forthe shares of Common Stock to be sold in connection with the Tag-Along Sale, duly endorsed for transfer with signatures guaranteed, to the purchaser in the manner and at the address indicated in the Tag-Along Notice against delivery of immediatelyavailable funds in the amount of the purchase price for such shares of Common Stock. 

 

§7.05 *Limitation on CuraGen Acquiring Capital Stock of the Company*. CuraGen will not acquire in the aggregate more than [16.7% of CuraGen’s holdings] shares of Common Stock or any securitiesconvertible into (except for shares of Common Stock issuable upon conversion of the Series A Preferred Stock and Series B Preferred Stock outstanding on the date hereof and the Series C Preferred Stock or Series D Preferred Stock to issued pursuantto the terms of this Agreement), or options, warrants, or rights to purchase, such shares of Common Stock (as adjusted for any stock dividends, stock splits, recapitalizations, consolidations or the like). 

 

14 

§7.06. *Termination of Rights*. The rights contained in this Section 7 shall terminateand be of no further force or effect immediately prior to the earliest to occur of: 

 
 (a) the effective date of the registration statement relating to an Initial Public Offering; or 
 
 (b) the consummation of the sale of all, or substantially all, of the Company’s assets or capital stock, either through a direct sale, merger, reorganization, consolidation orother form of business combination or acquisition in which the Company is the target of such acquisition and/or voting control of the equity securities of the Company is transferred to a third party unaffiliated with the Company.
 

§7.07. *Waiver of OtherRights*. Each of the Purchasers hereby waives for all time any and all rights it (or any of its successors) had or have under Section 8 (other than Section 8.05) of the Series B Purchase Agreement. 

 

**§8. MISCELLANEOUS**

 

§8.01. *Expenses*. Each party hereto will pay its ownexpenses in connection with the transactions contemplated hereby, whether or not such transactions shall be consummated. Notwithstanding the foregoing, the Company will pay the costs and expenses incurred by CuraGen in connection with thetransactions contemplated hereby. 

 

§8.02. *Survivalof Agreements*. Regardless of any investigation made at any time by or on behalf of CuraGen or the Purchasers, all covenants, agreements, representations and warranties made herein or in an agreement, certificate or instrument delivered toCuraGen and the Purchasers pursuant to or in connection with this Agreement, the Registration Rights Agreement or the Waiver Agreement, shall survive the execution and delivery of this Agreement, the Registration Rights Agreement and the WaiverAgreement, the issuance, sale and delivery of the Series C Preferred Stock and Series D Preferred Stock, and the issuance and delivery of the Conversion Shares for an indefinite period of time (except for the representations and warranties containedin Sections 2.03, 2.04, 2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 2.12 and 2.13 hereof, which shall survive until the close of business on the date that is twenty-four (24) months from the date hereof, and the representations and warranties contained inSection 2.05, which shall survive until the termination of the applicable statute of limitations), and all statements contained in any certificate or other instrument delivered by the Company hereunder or thereunder or in connection herewith ortherewith shall be deemed to constitute representations and warranties made by the Company. 

 

§8.03. *Brokerage.* Each party hereto will indemnify and hold harmless the others against and in respect of any claim for brokerage, finder’s fees or other commissions relative to this Agreementor to the transactions contemplated hereby, based in any way on agreements, arrangements or understandings made or claimed to have been made by such party with any third party. 

 

§8.04. *Parties in Interest*. All representations, covenants and agreements contained in this Agreement byor on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. Without limiting the generality of the foregoing, all representations,covenants and agreements benefiting 

 

15 

CuraGen and the Purchasers shall inure to the benefit of any and all subsequent holders from time to time of the Series C Preferred Stock, Series D PreferredStock or Conversion Shares. 

 

§8.05. *Notices*.All notices, requests, consents and other communications hereunder shall be in writing and shall be delivered in person or mailed by certified or registered mail, return receipt requested, or telexed or delivered by a recognized overnight carrier,addressed as follows: 

 
 (a) if to the Company, at 
 

20 Commercial Street 

Branford, CT 06405 

 
 (b) if to CuraGen, at 
 

555 Long Wharf Drive, 11th Floor 

New Haven, Connecticut 06511 

 
 (c) if to any Purchaser, at the address of such Purchaser set forth in *Schedule 1*; 
 

or, in any such case, at such other address or addresses as shall have been furnished in writing by such party to the others. 

 

§8.06. *Governing Law*. This Agreement shall be governed byand construed in accordance with the laws of the State of Delaware. 

 

§8.07. *Entire Agreement*. This Agreement, including the Schedules and Exhibits hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof. All Schedules and Exhibits heretoare hereby incorporated herein by reference. 

 

§8.08.*Counterparts*. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 

 

§8.09. *Amendments and Waivers*. This Agreement may beamended or modified, and provisions hereof may be waived, with the written consent of the Company, CuraGen and the holders of at least two-thirds (2/3) of the outstanding Series D Preferred Stock, except for any amendment, modification or waiverwhich adversely affects the rights of the holders of the Series D Preferred Stock, in which case written consent of 100% of the holders of the outstanding Series D Preferred Stock shall be required. 

 

§8.10. *Severability*. If any provision of this Agreementshall be declared void or unenforceable by any judicial or administrative authority, the validity of any other provision and of the entire Agreement shall not be affected thereby. 

 

16 

§8.11. *Titles and Subtitles*. The titles and subtitles used in this Agreement are forconvenience only and are not to be considered in construing or interpreting any term or provision of this Agreement. 

 

§8.12. *Certain Defined Terms*. As used in this Agreement, the following terms shall have the following meanings (such meanings to beequally applicable to both the singular and plural forms of the terms defined): 

 

(a) “*person*” shall mean an individual, corporation, trust, partnership, joint venture, unincorporated organization,government agency or any agency or political subdivision thereof, or other entity. 

 

(b) “*subsidiary*” shall mean, as to the Company, any corporation, limited liability company or other entity of which morethan 50% of the outstanding stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or mighthave voting power by reason of the happening of any contingency) is at the time directly or indirectly owned by the Company, or by one or more of its subsidiaries, or by the Company and one or more of its subsidiaries. 

 

17 

**IN WITNESS WHEREOF**, the Company, CuraGen and the Purchasers have executed this Agreement as of theday and year first above written. 

 
**454 Corporation**
By:
 
/s/    Richard F. Begley, Ph.D.
  
Name:
 **Richard F. Begley, Ph.D.**  
Title:
 **Chief Executive Officer and President**
 
**CuraGen Corporation**
By:
 
/s/    Jonathan M. Rothberg
  
Name:
 **Jonathan M. Rothberg**  
Title:
 **Chief Executive Officer and President**
 
PURCHASERS:/s/    Michael J. Rothberg**Michael J. Rothberg**/s/    Jonathan M. Rothberg**Jonathan M. Rothberg**/s/    Gianpiero Molinari**Gianpiero Molinari**/s/    Henry B. Rothberg**Henry B. Rothberg**/s/    David A. Rothberg**David A. Rothberg**/s/    Celia R. Meadow**Celia R. Meadow**
 

/s/    Deborah J. Rothberg**Deborah J. Rothberg**/s/    Judith Rothberg**Judith Rothberg**/s/    Bonnie E. Rothberg**Bonnie E. Rothberg**/s/    Gioel Molinari**Gioel Molinari**/s/    Jason Molinari**Jason Molinari**/s/    Micol Molinari**Micol Molinari**/s/    Henry B. Rothberg**Henry B. Rothberg, as Custodian for Alex Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Henry B. Rothberg**Henry B. Rothberg, as Custodian for Rebecca Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Henry B. Rothberg**Henry B. Rothberg, as Custodian for Samantha Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    David A. Rothberg**David A. Rothberg, as Custodian for Daniel B. Rothberg under the Connecticut Uniform Transfers to Minors Act**
 

/s/    David A. Rothberg**David A. Rothberg, as Custodian for Jason B. Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Deborah J. Rothberg**Deborah J. Rothberg, as Custodian for Analise Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Celia R. Meadow**Celia R. Meadow, as Custodian for Simone Meadow under the Connecticut Uniform Transfers to Minors Act**/s/    Celia R. Meadow**Celia R. Meadow, as Custodian for Averill Meadow under the Connecticut Uniform Transfers to Minors Act**/s/    Celia R. Meadow**Celia R. Meadow, as Custodian for Herschel Meadow under the Connecticut Uniform Transfers to Minors Act**/s/    Jonathan M. Rothberg**Jonathan M. Rothberg, as Custodian for Jordana Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Jonathan M. Rothberg**Jonathan M. Rothberg, as Custodian for Noah Rothberg under the Connecticut Uniform Transfers to Minors Act**
 

/s/    Jonathan M. Rothberg**Jonathan M. Rothberg, as Custodian for Elana Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Michael J. Rothberg**Michael J. Rothberg, as Custodian for Andrew Rothberg under the Florida Uniform Transfers to Minors Act**/s/    Michael J. Rothberg**Michael J. Rothberg, as Custodian for Justin Rothberg under the Florida Uniform Transfers to Minors Act**/s/    Robert E. Patricelli**Robert E. Patricelli**
 
**Henry M. Rothberg, Lillian R. Rothberg, and Michael J. Rothberg, as Trustees of the Henry M. Rothberg Family Trust u/i/d 12/4/00**BY TRUSTEES:  
/s/    Henry M. Rothberg
  **Henry M. Rothberg, Trustee**  
/s/    Lillian R. Rothberg
  **Lillian R. Rothberg, Trustee**  
/s/    Michael J. Rothberg
  **Michael J. Rothberg, Trustee**
 

**Lillian R. Rothberg, Henry M. Rothberg, and Michael J. Rothberg, as Trustees of the Lillian R. Rothberg Family Trust u/i/d 12/4/00**BY TRUSTEES:  
/s/    Lillian R. Rothberg
  **Lillian R. Rothberg, Trustee**  
/s/    Henry M. Rothberg
  **Henry M. Rothberg, Trustee**  
/s/    Michael J. Rothberg
  **Michael J. Rothberg, Trustee**
 
**Jonathan M. Rothberg Family Limited Partnership**  
/s/    Jonathan M. Rothberg
  
By:
 **Jonathan M. Rothberg**  
Its:
 **Its General Partner**
 
**MFIC LLC**
By:
 
/s/    Chris McLeod

Name:
 **Chris McLeod**
Title:
 **Manager**
 
**Mintz Levin Investments LLC**
By:
 
 

Name:
  
Title:
  
 
**Quantum Industrial Partners LDC**
By:
 
*

Name:
  
Title:
  
 

* Not a purchaser 

 

**Quantum Partners LDC**
By:
 
*

Name:
  
Title:
  
 
**CLSP, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 
/s/    Jeffrey W. Casdin

Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 
**CLSP-SBS I, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 
/s/    Jeffrey W. Casdin

Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 
**CLSP-SBS II, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 
/s/    Jeffrey W. Casdin

Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 
**CLSP II, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 
/s/    Jeffrey W. Casdin

Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 

* Not a purchaser 

 

**EXECUTION COPY**

 

**WAIVER AND**

**AMENDMENT NO. 1 TO PURCHASE AGREEMENT**

 

**WAIVER AND AMENDMENT NO. 1 TO PURCHASE AGREEMENT** (“Waiver and Amendment No. 1”) dated as of September 18, 2003, among 454 Corporation, a Delaware corporation (the “Company”), CuraGen Corporation, a Delawarecorporation (“CuraGen”), and the several purchasers named in the attached Schedule 1 (individually, a “Purchaser” and collectively the “Purchasers”). 

 

**WHEREAS**, the Company, CuraGen and certain purchasers entered into a Purchase Agreement (the “PurchaseAgreement”) dated as of June 5, 2000 in connection with the issuance by the Company of Units (as defined in the Purchase Agreement); and 

 

**WHEREAS**, in order to facilitate the proposed issuance by the Company of shares of Series C Preferred Stock and Series D Preferred Stock, pursuantto a purchase agreement dated the date hereof among the Company, CuraGen and certain purchasers (the “Proposed Financing”), the Company and the other parties hereto desire to waive and modify Section 8.05 of the Purchase Agreement inaccordance with the provisions of the Purchase Agreement. 

 

**NOW, THEREFORE, IT IS AGREED:**

 

Section 1.Waiver of Section 8.05 of the Purchase Agreement. The undersigned hereby waive the application of the restrictions set forth in Section 8.05 of the Purchase Agreement to the Proposed Financing. 

 

Section 2. Amendment of Section 8.01(a) of the Purchase Agreement.Section 8.01(a) of the Purchase Agreement is hereby deleted in its entirety and replaced with the following: 

 

(a) *Opportunity to Participate*. If CuraGen proposes to enter into an agreement to sell or otherwise dispose of for value (such sale or otherdisposition for value being referred to as a “*Tag-Along Sale*”) more than 3,073,611 shares (as adjusted for any stock dividends, stock splits, recapitalizations, consolidations or the like) of Common Stock in a single or series oftransactions, then CuraGen shall afford the holders of shares of the Series B Preferred Stock the opportunity to participate proportionately in such Tag-Along Sale (the person(s) being afforded the opportunity to participate proportionately in suchTag-Along Sale being referred to as the “Tag-Along Stockholders”) in accordance with this Section 8. For purposes of this Section 8, the term “Common Stock” shall include shares of Common Stock issuable upon the conversion ofsecurities convertible into Common Stock. 

Section 3. Amendment of Section 8.05 of the Purchase Agreement. Section 8.05 of the PurchaseAgreement is hereby deleted in its entirety and replaced with the following: 

 

§8.05 *Limitation on CuraGen Acquiring Capital Stock of the Company*. CuraGen will not acquire in the aggregate more than 3,073,611 shares of Common Stock or any securities convertible into (exceptfor shares of Common Stock issuable upon conversion of the Series A Preferred Stock and the Series B Preferred Stock outstanding on the date hereof and any Series C Preferred Stock of the Company or any Series D Preferred Stock of the Company to beissued pursuant to a purchase agreement dated September 18, 2003 among the Company, CuraGena and certain purchasers), or options, warrants, or rights to purchase, such shares of Common Stock (as adjusted for any stock dividends, stock splits,recapitalizations, consolidations or the like). 

 

Section 4.Further Assurances. Each party hereby agrees, at any time and from time to time after the date hereof, at the reasonable request of the other parties, to execute and deliver such other agreements, certificates or instruments as may bereasonably requested in order to more effectively amend the Purchase Agreement as set forth above or to confirm this Waiver and Amendment No. 1. 

 

Section 5. Effect of Waiver and Amendment. The parties hereby ratify and confirm all of the provisions of the Purchase Agreement, as modifiedhereby, and agree and acknowledge that the same as so amended remains in full force and effect. 

 

Section 6. Governing Law. This Waiver and Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of Delaware.

 

Section 7. Counterparts. This Waiver and Amendment No.1 may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 

 

**[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]**

**IN WITNESS WHEREOF**, the Company, CuraGen and the Purchasers have executed this Waiver andAmendment No. 1 as of the day and year first above written. 

 
**454 Corporation**
By:
 
/s/    Richard F. Begley, Ph.D.
  
Name:
 **Richard F. Begley, Ph.D.**  
Title:
 **Chief Executive Officer and President**
 
**CuraGen Corporation**
By:
 
/s/    Jonathan M. Rothberg
  
Name:
 **Jonathan M. Rothberg**  
Title:
 **Chief Executive Officer and President**
 

PURCHASERS:
/s/    Michael J. Rothberg**Michael J. Rothberg**/s/    Jonathan M. Rothberg**Jonathan M. Rothberg**/s/    Gianpiero Molinari**Gianpiero Molinari**/s/    Henry B. Rothberg**Henry B. Rothberg**/s/    David A. Rothberg**David A. Rothberg**/s/    Celia R. Meadow**Celia R. Meadow**
/s/    Deborah J. Rothberg**Deborah J. Rothberg**/s/    Judith Rothberg**Judith Rothberg**/s/    Bonnie E. Rothberg**Bonnie E. Rothberg**/s/    Gioel Molinari**Gioel Molinari**/s/    Jason Molinari**Jason Molinari**/s/    Micol Molinari**Micol Molinari**/s/    Henry B. Rothberg**Henry B. Rothberg, as Custodian for Alex Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Henry B. Rothberg**Henry B. Rothberg, as Custodian for Rebecca Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Henry B. Rothberg**Henry B. Rothberg, as Custodian for Samantha Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    David A. Rothberg**David A. Rothberg, as Custodian for Daniel B. Rothberg under the Connecticut Uniform Transfers to Minors Act**
/s/    David A. Rothberg**David A. Rothberg, as Custodian for Jason B. Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Deborah J. Rothberg**Deborah J. Rothberg, as Custodian for Analise Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Celia R. Meadow**Celia R. Meadow, as Custodian for Simone Meadow under the Connecticut Uniform Transfers to Minors Act**/s/    Celia R. Meadow**Celia R. Meadow, as Custodian for Averill Meadow under the Connecticut Uniform Transfers to Minors Act**/s/    Celia R. Meadow**Celia R. Meadow, as Custodian for Herschel Meadow under the Connecticut Uniform Transfers to Minors Act**/s/    Jonathan M. Rothberg**Jonathan M. Rothberg, as Custodian for Jordana Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Jonathan M. Rothberg**Jonathan M. Rothberg, as Custodian for Noah Rothberg under the Connecticut Uniform Transfers to Minors Act**
/s/    Jonathan M. Rothberg**Jonathan M. Rothberg, as Custodian for Elana Rothberg under the Connecticut Uniform Transfers to Minors Act**/s/    Michael J. Rothberg**Michael J. Rothberg, as Custodian for Andrew Rothberg under the Florida Uniform Transfers to Minors Act**/s/    Thomas R. Patricelli**Thomas R. Patricelli**/s/    Alison J. Patricelli**Alison J. Patricelli**
 
**Henry M. Rothberg, Lillian R. Rothberg, and Michael J. Rothberg, as Trustees of the Henry M. Rothberg Family Trust u/i/d 12/4/00**
BY TRUSTEES:
  /s/    Henry M. Rothberg    **Henry M. Rothberg, Trustee**  /s/    Lillian R. Rothberg    **Lillian R. Rothberg, Trustee**  /s/    Michael J. Rothberg    **Michael J. Rothberg, Trustee**
**Lillian R. Rothberg, Henry M. Rothberg, and Michael J. Rothberg, as Trustees of the Lillian R. Rothberg Family Trust u/i/d 12/4/00**
BY TRUSTEES:
  /s/    Lillian R. Rothberg    **Lillian R. Rothberg, Trustee**  /s/    Henry M. Rothberg    **Henry M. Rothberg, Trustee**  /s/    Michael J. Rothberg    **Michael J. Rothberg, Trustee**
 
**Jonathan M. Rothberg Family Limited Partnership**  /s/    Jonathan M. Rothberg    
By:
 **Jonathan M. Rothberg**  
Its:
 **Its General Partner**
 
**MFIC LLC**
By:
 /s/    Chris Mcleod          
Name:
 **Chris Mcleod**
Title:
 **Manager**
 
**Mintz Levin Investments LLC**
By:
    
Name:
  
Title:
  
 
**Quantum Industrial Partners LDC**
By:
 *  
Name:
  
Title:
  
**Quantum Partners LDC**
By:
 *  
Name:
  
Title:
  
 
**CLSP, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 /s/    Jeffrey W. Casdin  
Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 
**CLSP-SBS I, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 /s/    Jeffrey W. Casdin  
Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 
**CLSP-SBS II, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 /s/    Jeffrey W. Casdin  
Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**
 
**CLSP II, L.P.****By:** 
**Cooper Hill Partners, LLC**

**its GeneralPartner**

By:
 /s/    Jeffrey W. Casdin  
Name:
 **Jeffrey W. Casdin**
Title:
 **CEO**