Exhibit 10.2
Waiver and Third Amendment
to Investor Rights Agreement, dated as of September 21,
2005 (this “ Amendment ”), among Memory Pharmaceuticals Corp. (the
“ Company ”) and the investors set forth on the
signature page hereto (the “ Investors ”)
The Company and the Investors
entered into a Fourth Amended and Restated Investor Rights
Agreement dated as of September 11, 2003, as amended by an
Agreement dated as of December 18, 2003, among the Company,
Dr. Eric Kandel and the Investors, an Amendment dated as of
March 15, 2004 among the Company and the Investors and an
Amendment dated as of April 1, 2004 (the “ Investor
Rights Agreement ”). Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to such
terms in the Investor Rights Agreement.
On April 4, 2004, the Company
completed an Initial Public Offering and in connection therewith
each share of outstanding Preferred Stock was converted into shares
of Common Stock. The Company is considering entering into one or
more transactions in which it would offer and sell equity or
equity-linked securities by private placement in accordance with
the exemption from the registration requirements of the Securities
Act of 1933, as amended (the “ Private Placement
”). It is expected that following the closing of the Private
Placement, the Company will file a registration statement (the
“ Resale Registration Statement ”) with the
Securities and Exchange Commission for the resale from time to time
of the securities issued in connection with the Private
Placement.
The Company and the Investors wish
to amend the Investor Rights Agreement in certain respects to
(i) reflect the occurrence of the Initial Public Offering,
(ii) waive the application of certain rights of the Investors,
and (iii) make other conforming changes.
The Company and the Investors hereby
agree as follows:
1. Amendments to Investor
Rights Agreement .
(a) The definition of “
Registrable Securities ” included in Section 1.3
of the Investor Rights Agreement is hereby amended by deleting such
definition in its entirety and replacing it with the following:
“
Registrable Securities ” shall mean (i) shares of
Common Stock issued pursuant to the conversion of the Preferred
Stock or issued or issuable pursuant to the exercise of the
Warrant; and (ii) any shares of Common Stock or other
securities issued or issuable with respect to such shares of Common
Stock, the Preferred Stock or the Warrant by reason of any stock
split, stock dividend, recapitalization, reorganization, merger,
consolidation, sale of assets or similar event, excluding in any
event securities that (a) have been registered under the
Securities Act pursuant to an effective registration statement
filed thereunder and disposed of in accordance with the
registration statement covering them or (b) may be publicly
sold in any 90 day period pursuant to Rule 144 or any
successor exemption under the Securities Act. Wherever reference is
made in this Agreement to a request or consent of holders of a
certain percentage of Registrable Securities, the determination of
such percentage shall be calculated on the basis of shares of
Common Stock issued or issuable upon exercise of the Warrant even
if such exercise has not been effected.
(b) Section 4.12 of the
Investor Rights Agreement is hereby deleted in its entirety.
(c) Section 8.3 of the
Investor Rights Agreement is hereby amended by deleting
Section 8.3 in its entirety and replacing it with the
following:
“8.3
Modifications and Amendments . This Agreement may not be
amended or modified, and no provision hereof may be waived, without
the written consent of the Company and the holders of at least a
majority of the outstanding Registrable Securities with respect to
which the provisions of this Agreement have not terminated pursuant
to Section 8.13.”
(d) The Investor Rights
Agreement is amended by adding a new Section 8.13 as
follows:
“8.13
Termination of Rights . Each Investor’s rights, and
the rights of each other holder of Registrable Securities, under
this Agreement shall terminate with respect to such Investor or
holder of Registrable Securities upon the earlier to occur of:
(x) the date at which all Registrable Securities held by such
holder (and its affiliates, partners, former partners, members and
former members) may be publicly sold in any 90 day period
pursuant to Rule 144 or any successor exemption under the
Securities Act and (y) September 11, 2008.”
2. Waiver of Registration
Rights . The Investors hereby waive, on behalf of each holder
of Registrable Securities, all of such holders’ rights under
Section 4.4 of the Investor Rights Agreement with respect to
the Resale Registration Statement and the inclusion of any or all
of such holders’ Registrable Securities in the Resale
Registration Statement.
3. Agreement in Full Force
and Effect . Except as specifically amended by this Amendment,
the Investor Rights Agreement remains in full force and effect.
Wherever the terms of this Amendment and the Investor Rights
Agreement conflict, this Amendment controls. All references in the
Investor Rights Agreement to “this Agreement” shall
mean the Investor Rights Agreement, as amended hereby.
4. Effective Date .
This Amendment shall become effective upon execution by the Company
and the holders of at least two-thirds of the outstanding
Registrable Securities (recognizing that such Registrable
Securities constitute at least two-thirds of the shares of Common
Stock issued upon conversion of the Preferred Stock outstanding
immediately prior to the Initial Public Offering).
5. Counterparts . This
Amendment may be delivered by facsimile and executed in
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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In wit
