Prepared and filed by St Ives Burrups





EXHIBIT 10.2

REGISTRATION RIGHTS AGREEMENT


  REGISTRATION RIGHTS AGREEMENT (this
    “Agreement”), dated as of March 31, 2003, by and among Orchid
    BioSciences, Inc., a corporation organized under the laws of the State of
    Delaware (the “Company”), and the undersigned (together with
    their affiliates, the “Initial Investors”). 



WHEREAS:


  A.     In
    connection with the Securities Purchase Agreement, dated as of March 31, 2003,
    by and among the Company and the Initial Investors (the “Securities
    Purchase Agreement”), the Company has agreed, upon the terms and
    subject to the conditions contained therein, to issue and sell to the Initial
    Investors (i) shares of its Series A Convertible Preferred Stock (the “Preferred
    Stock”) that are convertible into shares of the Company’s common
    stock, par value $.001 per share (the “Common Stock”), upon
    the terms and subject to the limitations and conditions set forth in the Certificate
    of Designations, Rights and Preferences with respect to such Preferred Stock
    (the “Certificate of Designation”) and (ii) warrants (the
    “Warrants”) to acquire shares of Common Stock. The shares
    of Common Stock issuable upon conversion of the Preferred Stock are referred
    to herein as the “Conversion Shares” and the shares of Common
    Stock issuable upon exercise of or otherwise pursuant to the Warrants are
    referred to herein as the “Warrant Shares.”




  B.     To
    induce the Initial Investors to execute and deliver the Securities Purchase
    Agreement, the Company has agreed to provide certain registration rights under
    the Securities Act of 1933, as amended, and the rules and regulations thereunder,
    or any similar successor statute (collectively, the “Securities Act”),
    and applicable state securities laws.




  NOW, THEREFORE, in consideration
    of the premises and the mutual covenants contained herein and other good and
    valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
    the Company and the Initial Investors hereby agree as follows:




  1.     DEFINITIONS.




  (a)     As
    used in this Agreement, the following terms shall have the following meanings:




  (i)     “Investors”
    means the Initial Investors and any transferees or assignees who agree to
    become bound by the provisions of this Agreement in accordance with Section
    9 hereof.




  (ii)     “register,”
    “registered,” and “registration” refer to
    a registration effected by preparing and filing a Registration Statement or
    Statements in compliance with the Securities Act and pursuant to Rule 415
    under the Securities Act or any successor rule providing for offering securities
    on a continuous basis (“Rule 415”), and the declaration or
    ordering of effectiveness of such Registration Statement by the United States
    Securities and Exchange Commission (the “SEC”).



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  (iii)     “Registrable
    Securities” means (a) the Conversion Shares, (b) the Warrant Shares,
    (c) any shares of Common Stock issued as a dividend or premium on Preferred
    Stock and (d) any other shares of capital stock issued or issuable, from time
    to time (with any adjustments), as a distribution on or in exchange for or
    otherwise with respect to any of the foregoing, whether as default payments
    or otherwise.




  (iv)     “Registration
    Statement” means a registration statement of the Company under the
    Securities Act.




  (b)     Capitalized
    terms used herein and not otherwise defined herein shall have the respective
    meanings set forth in the Securities Purchase Agreement.




  2.     REGISTRATION.




  (a)     Mandatory
    Registration. The Company shall use its best efforts to prepare promptly
    and file with the SEC as soon as practicable, but in no event later than the
    sixtieth (60th) day following the Closing Date (the “Filing Date”),
    a Registration Statement on Form S-3 (or, if Form S-3 is not then available,
    on such form of Registration Statement as is then available to effect a registration
    of all of the Registrable Securities, subject to the consent of the Initial
    Investors) covering the resale of all of the Registrable Securities. The Registration
    Statement filed hereunder, to the extent allowable under the Securities Act
    and the Rules promulgated thereunder (including Rule 416), shall state that
    such Registration Statement also covers such indeterminate number of additional
    shares of Common Stock as may become issuable upon conversion of the Preferred
    Stock and exercise of the Warrants to prevent dilution resulting from stock
    splits, stock dividends or similar transactions. The Registrable Securities
    included in the Registration Statement shall be allocated to the Investors
    as set forth in Section 11(k) hereof. The Registration Statement (and each
    amendment or supplement thereto, and each request for acceleration of effectiveness
    thereof) shall be provided to (and subject to the approval of, which shall
    not be unreasonably withheld) the Initial Investors and its counsel prior
    to its filing or other submission. 



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  (b)     Payments
    by the Company. The Company shall use its best efforts to cause the Registration
    Statement required to be filed pursuant to Section 2(a) hereof to become effective
    as soon as practicable, but in no event later than one hundred twenty (120)
    days following the Filing Date. At the time of effectiveness, the Company
    shall ensure that such Registration Statement covers all of the Registrable
    Securities issuable at such time pursuant to the Preferred Stock and the Warrants
    (including, if necessary, by filing an amendment prior to the effective date
    of the Registration Statement to increase the number of shares covered thereby).
    If (i) (A) the Registration Statement required to be filed by the Company
    pursuant to Section 2(a) hereof is not filed with the SEC prior to the Filing
    Date or declared effective by the SEC on or before the ninetieth (90th) day
    after the Filing Date (the “Registration Deadline”) or (B)
    any Registration Statement required to be filed by the Company pursuant to
    Section 3(b) hereof is not declared effective by the SEC within ninety (90)
    days after the applicable Registration Trigger Date (as defined in Section
    3(b) hereof), or (ii) if, after any such Registration Statement has been declared
    effective by the SEC, sales of any of the Registrable Securities required
    to be covered by such Registration Statement (including any Registrable Securities
    required to be registered pursuant to Section 3(b) hereof) cannot be made
    pursuant to such Registration Statement (by reason of a stop order or the
    Company’s failure to update the Registration Statement or any other reason
    outside the control of the Investors), except as otherwise provided herein
    (including as provided in Section 3(g)), then the Company will make payments
    to the Investors in such amounts and at such times as shall be determined
    pursuant to this Section 2(b) as partial relief for the damages to the Investors
    by reason of any such delay in or reduction of their ability to sell the Registrable
    Securities (which remedy shall not be exclusive of any other remedies available
    at law or in equity). The Company shall pay to each Investor in cash upon
    demand an amount equal to the product of (i) the aggregate Purchase Price
    of the Preferred Stock and Warrants purchased at the Closing held by such
    Investor on the date giving rise to the Company’s obligations hereunder
    (including, without limitation, Preferred Stock that has been converted into
    Conversion Shares and Warrants that have been exercised for Warrant Shares
    then held by such Investor) (the “Aggregate Share Price”),
    multiplied by (ii) two hundredths (.02), for each thirty (30) day period (prorated
    on a daily basis for each portion thereof) (A) after the Filing Date and prior
    to the date the Registration Statement is filed with the SEC pursuant to Section
    2(a), (B) after the Registration Deadline and prior to the date the Registration
    Statement filed pursuant to Section 2(a) is declared effective by the SEC,
    (C) after the ninetieth (90th) day following a Registration Trigger Date (as
    defined in Section 3(b)) and prior to the date the Registration Statement
    filed pursuant to Section 3(b) hereof is declared effective by the SEC, and
    (D) during which sales of any Registrable Securities cannot be made pursuant
    to any such Registration Statement after the Registration Statement has been
    declared effective, except as otherwise provided herein (including as provided
    in Section 3(g)); provided, however, that there shall be excluded
    from each such period any delays which are solely attributable to changes
    (other than corrections of Company mistakes with respect to information previously
    provided by the Investors) required by the Investors in the Registration Statement
    with respect to information relating to the Investors, including, without
    limitation, changes to the plan of distribution. Notwithstanding the foregoing,
    in no event shall the Company be required to pay amounts with respect to (x)
    both (A) and (B), and (y) both (C) and (D) above for the same period of time.
    (For example, if the Registration Statement is not effective by the Registration
    Deadline, the Company would pay $20,000 for each thirty (30) day period thereafter
    with respect to each $1,000,000 of Aggregate Share Price until the Registration
    Statement becomes effective.) Such amounts shall be paid in cash. Payments
    of cash pursuant hereto shall be made within five (5) days after the end of
    each period that gives rise to such obligation, provided that, if any such
    period extends for more than thirty (30) days, interim payments shall be made
    for each such thirty (30) day period. Notwithstanding anything contained herein
    to the contrary, the Company shall not be required to make any payments to
    an Investor pursuant to this Section 2(b) due to events or circumstances wholly
    beyond its control. Such events or circumstances shall include, but not be
    limited to, (i) acts of god, (ii) acts of terrorism or any other calamity
    or crisis that adversely affects the Investor’s ability to sell Registrable
    Securities pursuant to such Registration Statement, (iii) if trading generally
    shall have been suspended or materially limited on or by the NNM (as defined
    in Section 3(k)) or such other securities exchange or electronic trading system
    on which the Common Stock is then listed or traded gross negligence, or (iv)
    willful misfeasance on the part of such Investor.




  (c)     Eligibility
    for Form S-3. The Company represents and warrants that it meets the requirements
    for the use of Form S-3 for registration of the resale by the Initial Investors
    of the Registrable Securities and the Company shall file all reports required
    to be filed by the Company with the SEC in a timely manner so as to maintain
    such eligibility for the use of Form S-3.



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  3.     OBLIGATIONS
    OF THE COMPANY.

   In connection with the registration of
    the Registrable Securities, the Company shall have the following obligations:




  (a)     The
    Company shall respond promptly to any and all comments made by the staff of
    the SEC to the Registration Statement required by Section 2(a), and shall
    submit to the SEC before the close of business on or before the second business
    day immediately following the business day on which the Company learns (either
    by telephone or in writing) that no review of such Registration Statement
    will be made by the SEC or that the staff of the SEC has no further comments
    on such Registration Statement, as the case may be, a request for acceleration
    of the effectiveness of such Registration Statement to a time and date as
    soon as practicable. The Company shall keep such Registration Statement effective
    pursuant to Rule 415 at all times until such date as is the earlier of (i)
    the date on which all of the Registrable Securities have been sold and (ii)
    the date on which all of the Registrable Securities may be immediately sold
    to the public without registration or restriction pursuant to Rule 144(k)
    under the Securities Act or any successor provision (the “Registration
    Period”), which Registration Statement (including any amendments
    or supplements thereto and prospectuses contained therein and all documents
    incorporated by reference therein) (i) shall comply in all material respects
    with the requirements of the Securities Act and the rules and regulations
    of the SEC promulgated thereunder and (ii) shall not contain any untrue statement
    of a material fact or omit to state a material fact required to be stated
    therein, or necessary to make the statements therein not misleading. The financial
    statements of the Company included in the Registration Statement or incorporated
    by reference therein will comply as to form in all material respects with
    the applicable accounting requirements and the published rules and regulations
    of the SEC applicable with respect thereto. Such financial statements will
    be prepared in accordance with U.S. generally accepted accounting principles,
    consistently applied, during the periods involved (except (i) as may be otherwise
    indicated in such financial statements or the notes thereto, or (ii) in the
    case of unaudited interim statements, to the extent they may not include footnotes
    or may be condensed on summary statements and fairly present in all material
    respects the consolidated financial position of the Company and its consolidated
    subsidiaries as of the dates thereof and the consolidated results of their
    operations and cash flows for the periods then ended (subject, in the case
    of unaudited statements, to immaterial year-end adjustments).



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  (b)     The
    Company shall use its best efforts, to prepare and file with the SEC such
    amendments (including post-effective amendments) and supplements to the Registration
    Statement and the prospectus used in connection with the Registration Statement
    as may be necessary to keep the Registration Statement effective at all times
    during the Registration Period, and, during such period, comply with the provisions
    of the Securities Act with respect to the disposition of all Registrable Securities
    of the Company covered by the Registration Statement until such time as all
    of such Registrable Securities have been disposed of in accordance with the
    intended methods of disposition by the seller or sellers thereof as set forth
    in the Registration Statement. In the event the number of shares available
    under a Registration Statement filed pursuant to this Agreement is, for any
    three (3) consecutive trading days (the last of such three (3) trading days
    being the “Registration Trigger Date”), insufficient to cover
    one hundred percent (100%) of the Registrable Securities issued or issuable
    upon conversion (without giving effect to any limitations on conversion contained
    in Article IV.D of the Certificate of Designation) of the Preferred Stock
    and exercise of the Warrants (without giving effect to any limitations on
    exercise contained in Section 7(g) of the Warrants), the Company shall amend
    the Registration Statement, or file a new Registration Statement (on the short
    form available therefor, if applicable), or both, so as to cover one hundred
    percent (100%) of the Registrable Securities issued or issuable (without giving
    effect to any limitations on conversion or exercise contained in the Certificate
    of Designation or the Warrants) as of the Registration Trigger Date, in each
    case, as soon as practicable, but in any event within fifteen (15) days after
    the Registration Trigger Date (based on the market price then in effect of
    the Common Stock and other relevant factors on which the Company reasonably
    elects to rely). The Company shall use its best efforts to cause such amendment(s)
    and/or new Registration Statement to become effective as soon as practicable
    following the filing thereof. In the event the Company fails to obtain the
    effectiveness of any such Registration Statement within ninety (90) days after
    a Registration Trigger Date, each Investor shall thereafter have the option,
    exercisable in whole or in part at any time and from time to time by delivery
    of a written notice to the Company (a “Mandatory Redemption Notice”),
    to require the Company to purchase for cash, at an amount per share equal
    to the Redemption Amount (as defined in Article VIII.B of the Certificate
    of Designation), a portion of the Investor’s Preferred Stock such that
    the total number of Registrable Securities included on the Registration Statements
    for resale by such Investor exceeds 100% of the Registrable Securities issued
    or issuable upon conversion (without giving effect to any limitations on conversion
    contained in Article IV.D of the Certificate of Designation) of such Investor’s
    Preferred Stock and exercise of such Investor’s Warrants. If the Corporation
    fails to redeem any of such shares within five (5) business days after its
    receipt of a Mandatory Redemption Notice, then such Investor shall be entitled
    to the remedies provided in Article VIII.D of the Certificate of Designation.




  (c)     The
    Company shall furnish to the Initial Investors’ Counsel (as defined in
    Section 3(h)), promptly after the same is prepared and publicly distributed,
    filed with the SEC, or received by the Company, one copy of the Registration
    Statement and any amendment thereto, each preliminary prospectus and prospectus
    and each amendment or supplement thereto, and, in the case of the Registration
    Statement referred to in Section 2(a), each letter written by or on behalf
    of the Company to the SEC or the staff of the SEC (including, without limitation,
    any request to accelerate the effectiveness of the Registration Statement
    or amendment thereto), and each item of correspondence from the SEC or the
    staff of the SEC, in each case relating to the Registration Statement (other
    than any portion, if any, thereof which contains information for which the
    Company has sought confidential treatment). The Company shall furnish to each
    Investor whose Registrable Securities are included in the Registration Statement
    and the Initial Investors’ Counsel (i) by the next business day after
    the date of effectiveness of the Registration Statement or any amendment thereto,
    a notice stating that the Registration Statement or amendment has been declared
    effective, and (ii) such number of copies of a prospectus, including a preliminary
    prospectus, and all amendments and supplements thereto and such other documents
    as such Investor may reasonably request in order to facilitate the disposition
    of the Registrable Securities owned by such Investor.



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  (d)     The
    Company shall use its best efforts to (i) register and qualify the Registrable
    Securities covered by the Registration Statement under such other securities
    or “blue sky” laws of such jurisdictions in the United States as
    each Investor who holds Registrable Securities being offered reasonably requests,
    (ii) prepare and file in those jurisdictions such amendments (including post-effective
    amendments) and supplements to such registrations and qualifications as may
    be necessary to maintain the effectiveness thereof during the Registration
    Period, (iii) take such other actions as may be necessary to maintain such
    registrations and qualifications in effect at all times during the Registration
    Period, and (iv) take all other actions reasonably necessary or advisable
    to qualify the Registrable Securities for sale in such jurisdictions; provided,
    however, that the Company shall not be required in connection therewith
    or as a condition thereto to (a) qualify to do business in any jurisdiction
    where it would not otherwise be required to qualify but for this Section 3(d),
    (b) subject itself to general taxation in any such jurisdiction, (c) file
    a general consent to service of process in any such jurisdiction, (d) provide
    any undertakings that cause the Company undue expense or burden, or (e) make
    any change in its charter or by­laws, which in each case the Board of
    Directors of the Company determines to be contrary to the best interests of
    the Company and its stockholders.




  (e)     As
    promptly as practicable after becoming aware of such event, the Company shall
    notify each Investor by telephone and facsimile of the happening of any event,
    of which the Company has knowledge, as a result of which the prospectus included
    in the Registration Statement, as then in effect, includes an untrue statement
    of a material fact or omission to state a material fact required to be stated
    therein or necessary to make the statements therein not misleading, and, use
    its best efforts promptly to prepare a supplement or amendment to the Registration
    Statement to correct such untrue statement or omission, and deliver such number
    of copies of such supplement or amendment to each Investor as such Investor
    may reasonably request.




  (f)     The
    Company shall use its best efforts (i) to prevent the issuance of any stop
    order or other suspension of effectiveness of a Registration Statement (other
    than as permitted herein or in the Securities Purchase Agreement), and, if
    such an order is issued, to obtain the withdrawal of such order at the earliest
    practicable moment (including in each case by amending or supplementing such
    Registration Statement) and (ii) to notify each Investor who holds Registrable
    Securities being sold of the issuance of such order and the resolution thereof
    (and if such Registration Statement is supplemented or amended, deliver such
    number of copies of such supplement or amendment to each Investor as such
    Investor may reasonably request). 




  (g)     Delay
    Periods; Suspension of Sales.




  (i)     If,
    at any time prior to the expiration of the Registration Period (as defined
    below), in the good faith reasonable judgment of the Company’s Board
    of Directors, the disposition of Registrable Securities would require the
    premature disclosure of material non-public information which may reasonably
    be expected to have an adverse effect on the Company, then the Company shall
    not be required to maintain the effectiveness of or amend or supplement the
    Registration Statement for a period (a “Disclosure Delay Period”)
    expiring upon the earlier to occur of (i) the date on which such material
    information is disclosed to the public or ceases to be material or (ii) subject
    to Section 3(g)(ii) below, up to thirty (30) days after the date on which
    the Company provides a notice to the Investors under Section 3(e) hereof stating
    that the failure to disclose such non-public information causes the prospectus
    included in the Registration Statement, as then in effect, to include an untrue
    statement of a material fact or to omit to state a material fact required
    to be stated therein or necessary to make the statements therein not misleading
    (each, a “Disclosure Delay Period Notice”). For the avoidance of
    doubt, in no event shall a Disclosure Delay Period exceed thirty (30) days.
    



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  (ii)     The
    Company will give prompt written notice, in the manner prescribed by Section
    3(e) hereof, to the Investors of each Disclosure Delay Period. If practicable,
    such notice shall estimate the duration of such Disclosure Delay Period. Each
    Investor agrees that, upon receipt of a Disclosure Delay Period Notice prior
    to the Investor’s disposition of all such Registrable Securities, Investor
    will forthwith discontinue the disposition of such Registrable Securities
    pursuant to the Registration Statement, and will not deliver any prospectus
    forming a part thereof in connection with any sale of such Registrable Securities
    until the expiration of such Disclosure Delay Period. In addition, the provisions
    of Section 2(b) hereof shall not apply to the Disclosure Delay Periods. Notwithstanding
    anything in this Section 3 to the contrary, the Company shall not deliver
    more than two (2) Disclosure Delay Period Notices in any one (1) year period
    and there shall not be more than an aggregate of sixty (60) calendar days
    in any twelve (12) month period during which the Company is in a Disclosure
    Delay Period nor more than an aggregate of thirty (30) calendar days in any
    ninety (90) calendar day period during which the Company is in a Disclosure
    Delay Period.




  (h)     The
    Company shall permit a single firm of counsel designated by the Initial Investors
    to review the Registration Statement and all amendments and supplements thereto
    a reasonable period of time prior to its filing with the SEC, and not file
    any document in a form to which such counsel reasonably objects.




  (i)     The
    Company shall make generally available to its security holders as soon as
    practical, but not later than ninety (90) days after the close of the period
    covered thereby, an earnings statement (in form complying with the provisions
    of Rule 158 under the Securities Act) covering a twelve-month period beginning
    not later than the first day of the Company’s fiscal quarter next following
    the effective date of the Registration Statement which compliance will be
    met through the Company’s filing, on an appropriate form, the appropriate
    report of the Company as required by the Securities Exchange Act of 1934,
    as amended. 




  (j)     The
    Company shall hold in confidence and not make any disclosure of information
    concerning an Investor provided to the Company unless (i) disclosure of such
    information is necessary to comply with federal or state securities laws,
    (ii) the disclosure of such information is necessary to avoid or correct a
    misstatement or omission in any Registration Statement, (iii) the release
    of such information is ordered pursuant to a subpoena or other order from
    a court or governmental body of competent jurisdiction, (iv) such information
    has been made generally available to the public other than by disclosure in
    violation of this or any other agreement, or (v) such Investor consents to
    the form and content of any such disclosure. The Company agrees that it shall,
    upon learning that disclosure of such information concerning an Investor is
    sought in or by a court or governmental body of competent jurisdiction or
    through other means, give prompt notice to such Investor prior to making such
    disclosure, and allow the Investor, at its expense, to undertake appropriate
    action to prevent disclosure of, or to obtain a protective order for, such
    information.



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  (k)     The
    Company shall have filed a Notification Form: Listing of Additional Shares
    with respect to the Common Shares and the Warrant Shares with the Nasdaq National
    Market (“NNM”) on or before the Closing (as defined in the
    Securities Purchase Agreement). The Company will use its best efforts to continue
    the listing and trading of its Common Stock on the NNM, the NYSE, the AMEX
    or the SmallCap and will comply in all material respects with the reporting,
    filing and other obligations under the bylaws or rules of the NASD and such
    exchanges, as applicable. The Company shall promptly provide to each holder
    of Preferred Shares and/or Warrants copies of any notices it receives regarding
    the continued eligibility of the Common Stock for trading on the NNM or, if
    applicable, any securities exchange or automated quotation system on which
    securities of the same class or series issued by the Company are then listed
    or quoted, if any.




  (l)     The
    Company shall provide a transfer agent and registrar, which may be a single
    entity, for the Registrable Securities not later than the effective date of
    the Registration Statement.




  (m)     The
    Company shall cooperate with the Investors who hold Registrable Securities
    being offered to facilitate the timely preparation and delivery of certificates
    (not bearing any restrictive legends to the extent permitted by the Securities
    Purchase Agreement) representing Registrable Securities to be offered pursuant
    to the Registration Statement and enable such certificates to be in such denominations
    or amounts, as the case may be, as the Investors may reasonably request and
    registered in such names as the Investors may request.




  (n)     At
    the request of any Investor, the Company shall prepare and file with the SEC
    such amendments (including post-effective amendments) and supplements to a
    Registration Statement and the prospectus used in connection with such Registration
    Statement as may be necessary in order to change the plan of distribution
    set forth in such Registration Statement.




  (o)     The
    Company shall comply with all applicable laws related to a Registration Statement
    and offering and sale of securities and all applicable rules and regulations
    of governmental authorities in connection therewith (including, without limitation,
    the Securities Act and the Securities Exchange Act of 1934, as amended, and
    the rules and regulations promulgated by the SEC).




  (p)     From
    and after the date of this Agreement, the Company shall not, and shall not
    agree to, allow the holders of any securities of the Company to include any
    of their securities which are not Registrable Securities in the Registration
    Statement under Section 2(a) hereof or any amendment or supplement thereto
    under Section 3(b) hereof without the consent of the holders of a majority
    in interest of the Registrable Securities (other than as set forth in the
    Schedule of Exceptions to the Securities Purchase Agreement).



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  4.     OBLIGATIONS
    OF THE INVESTORS. In connection with the registration of the Registrable
    Securities, the Investors shall have the following obligations:




  (a)     It
    shall be a condition precedent to the obligations of the Company to complete
    the registration pursuant to this Agreement with respect to the Registrable
    Securities of a particular Investor that such Investor shall furnish to the
    Company such information regarding itself, the Registrable Securities held
    by it and the intended method of disposition of the Registrable Securities
    held by it as shall be reasonably required to effect the registration of such
    Registrable Securities and shall execute such documents in connection with
    such registration as the Company may reasonably request. At least five trading
    days prior to the first anticipated filing date of the Registration Statement,
    the Company shall notify each Investor of the information the Company requires
    from each such Investor. 




  (b)     Each
    Investor, by such Investor’s acceptance of the Registrable Securities,
    agrees to cooperate with the Company as reasonably requested by the Company
    in connection with the preparation and filing of the Registration Statement
    hereunder, unless such Investor has notified the Company in writing of such
    Investor’s election to exclude all of such Investor’s Registrable
    Securities from such Registration Statement.




  (c)     Each
    Investor agrees that, upon receipt of any notice from the Company of the happening
    of any event of the kind described in Section 3(e), such Investor will immediately
    discontinue disposition of Registrable Securities pursuant to the Registration
    Statement covering such Registrable Securities until such Investor’s
    receipt of the copies of the supplemented or amended prospectus contemplated
    by Section 3(e) and, if so directed by the Company, such Investor shall deliver
    to the Company (at the expense of the Company) or destroy (and deliver to
    the Company a certificate of destruction) all copies in such Investor’s
    possession, of the prospectus covering such Registrable Securities current
    at the time of receipt of such notice. Notwithstanding anything to the contrary,
    subject to compliance with applicable laws, the Company shall cause the transfer
    agent for the Registrable Securities to deliver unlegended shares of Common
    Stock to a transfer ee of an Investor in accordance with the terms of the
    Certificate of Designation and Warrants in connection with any sale of Registrable
    Securities with respect to which such Investor has entered into a contract
    for sale prior to receipt of such notice and for which such Investor has not
    yet settled.




  5.     EXPENSES
    OF REGISTRATION. All reasonable expenses incurred by the Company or the
    Investors (but only for reasonable attorney’s fees of one counsel for
    the Investors) in connection with registrations, filings or qualifications
    pursuant to Sections 2 and 3 above, including, without limitation, all registration,
    listing and qualifications fees, printers and accounting fees, the fees and
    disbursements of counsel for the Company, and the fees and disbursements of
    one counsel selected by the Investors, shall be borne by the Company. The
    Investors shall be responsible for paying the underwriting commissions or
    brokerage fees and taxes of any kind (including, without limitation, transfer
    taxes) applicable to any disposition, sale or transfer of Registrable Securities.

  6.     INDEMNIFICATION.
    In the event any Registrable Securities are included in a Registration Statement
    under this Agreement: 



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  (a)     To
    the extent permitted by law, the Company will indemnify, hold harmless and
    defend (i) each Investor who holds such Registrable Securities, and (ii) the
    directors, officers, partners, members, employees and agents of such Investor
    and each person who controls any Investor within the meaning of Section 15
    of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
    as amended (the “Exchange Act”), if any, (each, an “Indemnified
    Person”), against any joint or several losses, claims, damages, liabilities
    or expenses (collectively, together with actions, proceedings or inquiries
    by any regulatory or self-regulatory organization, whether commenced or threatened,
    in respect thereof, “Claims”) to which any of them may become
    subject insofar as such Claims arise out of or are based upon: (i) any untrue
    statement or alleged untrue statement of a material fact in a Registration
    Statemen t or the omission or alleged omission to state therein a material
    fact required to be stated or necessary to make the statements therein not
    misleading, (ii) any untrue statement or alleged untrue statement of a material
    fact contained in any preliminary prospectus if used prior to the effective
    date of such Registration Statement, or contained in the final prospectus
    (as amended or supplemented, if the Company files any amendment thereof or
    supplement thereto with the SEC) or the omission or alleged omission to state
    therein any material fact necessary to make the statements made therein, in
    light of the circumstances under which the statements therein were made, not
    misleading, or (iii) any violation or alleged violation by the Company of
    the Securities Act, the Exchange Act, any other law, including, without limitation,
    any state securities law, or any rule or regulation thereunder relating to
    the offer or sale of the Registrable Securities (the matters in the foregoing
    clauses (i) through (iii) being, co llectively, “Violations”).
    Subject to the restrictions set forth in Section 6(c) with respect to the
    number of legal counsel, the Company shall reimburse the Investors and each
    other Indemnified Person, promptly as such expenses are incurred and are due
    and payable, for any reasonable legal fees or other reasonable expenses incurred
    by them in connection with investigating or defending any such Claim. Notwithstanding
    anything to the contrary contained herein, the indemnification agreement contained
    in this Section 6(a): (i) shall not apply to a Claim arising out of or based
    upon a Violation which occurs in reliance upon and in conformity with information
    furnished in writing to the Company by such Indemnified Person expressly for
    use in the Registration Statement or any such amendment thereof or supplement
    thereto; (ii) shall not apply to amounts paid in settlement of any Claim if
    such settlement is effected without the prior written consent of the Company,
    which consent shall not be unr easonably withheld; and (iii) with respect
    to any preliminary prospectus, shall not inure to the benefit of any Indemnified
    Person if the untrue statement or omission of material fact contained in the
    preliminary prospectus was corrected on a timely basis in the prospectus,
    as then amended or supplemented, if such corrected prospectus was timely made
    available by the Company pursuant to Section 3(c) hereof, and the Indemnified
    Person was promptly advised in writing not to use the incorrect prospectus
    prior to the use giving rise to a Violation and such Indemnified Person, notwithstanding
    such advice, used it. Such indemnity shall remain in full force and effect
    regardless of any investigation made by or on behalf of the Indemnified Person
    and shall survive the transfer of the Registrable Securities by the Investors
    pursuant to Section 9 hereof.



10








  (b)     In
    connection with any Registration Statement in which an Investor is participating,
    each such Investor agrees severally and not jointly to indemnify, hold harmless
    and defend, to the same extent and in the same manner set forth in Section
    6(a), the Company, each of its directors, each of its officers who signs the
    Registration Statement, its employees, agents and each person, if any, who
    controls the Company within the meaning of Section 15 of the Securities Act
    or Section 20 of the Exchange Act, and any other stockholder selling securities
    pursuant to the Registration Statement or any of its directors or officers
    or any person who controls such stockholder within the meaning of the Securities
    Act or the Exchange Act (collectively and together with an Indemnified Person,
    an “Indemnified Party”), against any Claim to which any of
    them may become subject, under the Securities Act, the Exchange Act or otherwise,
    insofar as such Claim ar ises out of or is based upon any Violation, in each
    case to the extent (and only to the extent) that such Violation occurs in
    reliance upon and in conformity with written information furnished to the
    Company by such Investor expressly for use in connection with such Registration
    Statement; and subject to Section 6(c) such Investor will reimburse any legal
    or other expenses (promptly as such expenses are incurred and are due and
    payable) reasonably incurred by them in connection with investigating or defending
    any such Claim; provided, however, that the indemnity agreement contained
    in this Section 6(b) shall not apply to amounts paid in settlement of any
    Claim if such settlement is effected without the prior written consent of
    such Investor, which consent shall not be unreasonably withheld; provided,
    further, however, that the Investor shall be liable under this
    Agreement (including this Section 6(b) and Section 7) for only that amount
    as does not exceed the net proceeds actually received by such Investor as
    a result of the sale of Registrable Securities pursuant to such Registration
    Statement. Such indemnity shall remain in full force and effect regardless
    of any investigation made by or on behalf of such Indemnified Party and shall
    survive the transfer of the Registrable Securities by the Investors pursuant
    to Section 9 hereof. Notwithstanding anything to the contrary contained herein,
    the indemnification agreement contained in this Section 6(b) with respect
    to any preliminary prospectus shall not inure to the benefit of any Indemnified
    Party if the untrue statement or omission of material fact contained in the
    preliminary prospectus was corrected on a timely basis in the prospectus,
    as then amended or supplemented.




  (c)     Promptly
    after receipt by an Indemnified Person or Indemnified Party under this Section
    6 of notice of the commencement of any action (including any governmental
    action), such Indemnified Person or Indemnified Party shall, if a Claim in
    respect thereof is to made against any indemnifying party under this Section
    6, deliver to the indemnifying party a written notice of the commencement
    thereof, and the indemnifying party shall have the right to participate in,
    and, to the extent the indemnifying party so desires, jointly with any other
    indemnifying party similarly noticed, to assume control of the defense thereof
    with counsel mutually satisfactory to the indemnifying party and the Indemnified
    Person or the Indemnified Party, as the case may be; provided, however,
    that such indemnifying party shall not be entitled to assume such defense
    and an Indemnified Person or Indemnified Party shall have the right to retain
    its own counsel with the fee s and expenses to be paid by the indemnifying
    party, if, in the reasonable opinion of counsel retained by the indemnifying
    party, the representation by such counsel of the Indemnified Person or Indemnified
    Party and the indemnifying party would be inappropriate due to actual or potential
    conflicts of interest between such Indemnified Person or Indemnified Party
    and any other party represented by such counsel in such proceeding or the
    actual or potential defendants in, or targets of, any such action include
    both the Indemnified Person or the Indemnified Party and the indemnifying
    party and any such Indemnified Person or Indemnified Party reasonably determines
    that there may be legal defenses available to such Indemnified Person or Indemnified
    Party which are in conflict with those available to such indemnifying party.
    The indemnifying party shall pay for only one separate legal counsel for the
    Indemnified Persons or the Indemnified Parties, as applicable, and such legal
    counsel shall be selected by Investor s holding a majority-in-interest of
    the Registrable Securities included in the Registration Statement to which
    the Claim relates (with the approval of the Initial Investors if it holds
    Registrable Securities included in such Registration Statement), if the Investors
    are entitled to indemnification hereunder, or by the Company, if the Company
    is entitled to indemnification hereunder, as applicable. The failure to deliver
    written notice to the indemnifying party within a reasonable time of the commencement
    of any such action shall not relieve such indemnifying party of any liability
    to the Indemnified Person or Indemnified Party under this Section 6, except
    to the extent that the indemnifying party is actually prejudiced in its ability
    to defend such action. The indemnification required by this Section 6 shall
    be made by periodic payments of the amount thereof during the course of the
    investigation or defense, as such expense, loss, damage or liability is incurred
    and is due and payable.



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  7.     CONTRIBUTION.
    To the extent any indemnification by an indemnifying party is prohibited or
    limited by law, the indemnifying party agrees to make the maximum contribution
    with respect to any amounts for which it would otherwise be liable under Section
    6 to the fullest extent permitted by law as is appropriate to reflect the
    relative fault of the indemnifying party, on the one hand, and the Indemnified
    Person or Indemnified Party, as the case may be, on the other hand, with respect
    to the Violation giving rise to the applicable Claim; provided, however,
    that (i) no contribution shall be made under circumstances where the maker
    would not have been liable for indemnification under the fault standards set
    forth in Section 6, (ii) no person guilty of fraudulent misrepresentation
    (within the meaning of Section 12(f) of the Securities Act) shall be entitled
    to contribution from any seller of Registrable Securities who was not guilty
    of such fra udulent misrepresentation, and (iii) contribution (together with
    any indemnification or other obligations under this Agreement) by any seller
    of Registrable Securities shall be limited in amount to the net amount of
    proceeds received by such seller from the sale of such Registrable Securities.

  8.     REPORTS UNDER
    THE EXCHANGE ACT. With a view to making available to the Investors the
    benefits of Rule 144 promulgated under the Securities Act or any other similar
    rule or regulation of the SEC that may at any time permit the Investors to
    sell securities of the Company to the public without registration (“Rule
    144”), the Company agrees to:




  (i)     file
    with the SEC in a timely manner and make and keep available all reports and
    other documents required of the Company under the Securities Act and the Exchange
    Act so long as the Company remains subject to such requirements (it being
    understood that nothing herein shall limit the Company’s obligations
    under Section 4(c) of the Securities Purchase Agreement) and the filing and
    availability of such reports and other documents is required for the applicable
    provisions of Rule 144; and

  (ii)     furnish to
    each Investor so long as such Investor owns shares of Preferred Stock, Warrants
    or Registrable Securities, promptly upon request, (i) a written statement
    by the Company that it has complied with the reporting requirements of Rule
    144, the Securities Act and the Exchange Act, (ii) a copy of the most recent
    annual or quarterly report of the Company and such other reports and documents
    so filed by the Company, and (iii) such other information as may be reasonably
    requested to permit the Investors to sell such securities under Rule 144 without
    registration.



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  9.     ASSIGNMENT
    OF REGISTRATION RIGHTS. The rights of the Investors hereunder, including
    the right to have the Company register Registrable Securities pursuant to
    this Agreement, shall be automatically assignable by each Investor to any
    transferee of all or any portion of the shares of Preferred Stock, the Warrants
    or the Registrable Securities if: (i) the Investor agrees in writing with
    the transferee or assignee to assign such rights, and a copy of such agreement
    is furnished to the Company after such assignment, (ii) the Company is furnished
    with written notice of (a) the name and address of such transferee or assignee,
    and (b) the securities with respect to which such registration rights are
    being transferred or assigned, (iii) following such transfer or assignment,
    the further disposition of such securities by the transferee or assignee is
    restricted under the Securities Act and applicable state securities laws,
    (iv) the transferee or assignee agrees in writing for the benefit of the Company
    to be bound by all of the provisions contained herein, and (v) such transfer
    shall have been made in accordance with the applicable requirements of the
    Securities Purchase Agreement, the Certificate of Designation for the Preferred
    Stock and the Warrants, as applicable, provided however, that the rights of
    any Investor hereunder may not be assigned to direct competitors of the Company
    or persons or entities that have announced plans to compete directly with
    the Company. In addition, and notwithstanding anything to the contrary contained
    in this Agreement, the Securities Purchase Agreement, the Certificate of Designation
    or the Warrants, the Securities (as defined in the Securities Purchase Agreement)
    may be pledged, and all rights of the Investors under this Agreement or any
    other agreement or document related to the transactions contemplated hereby
    may be assigned, without further consent of the Company, to a bona fide pledgee
    in connection with an Investor’s margin or brokerage account, provided
    such pledge is consistent with applicable laws, rules and regulations, including
    those promulgated under the Securities Act.

  10.     AMENDMENT
    OF REGISTRATION RIGHTS. Provisions of this Agreement may be amended and
    the observance thereof may be waived (either generally or in a particular
    instance and either retroactively or prospectively), only with written consent
    of the Company, and Investors who hold more than fifty percent (50%) of the
    Registrable Securities or, in the case of a waiver, with the written consent
    of the party charged with the enforcement of any such provision; provided,
    however, that no consideration shall be paid to an Investor by the
    Company in connection with an amendment hereto unless each Investor similarly
    affected by such amendment receives a pro-rata amount of consideration from
    the Company. Any amendment or waiver effected in accordance with this Section
    10 shall be binding upon each Investor and the Company.

  11.     MISCELLANEOUS.




  (a)     A
    person or entity is deemed to be a holder of Registrable Securities whenever
    such person or entity owns of record such Registrable Securities. If the Company
    receives conflicting instructions, notices or elections from two or more persons
    or entities with respect to the same Registrable Securities, the Company shall
    act upon the basis of instructions, notice or election received from the registered
    owner of such Registrable Securities.



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  (b)     Any
    notices required or permitted to be given under the terms of this Agreement
    shall be sent by certified or registered mail (return receipt requested),
    or by a nationally recognized overnight delivery service, or delivered personally
    or by courier or by confirmed telecopy, and shall be effective five (5) days
    after being placed in the mail, if mailed certified or registered mailed,
    or one (1) day after being delivered to the nationally recognized overnight
    delivery service, if delivered in such manner, or upon receipt or refusal
    of receipt, if delivered personally or by courier or confirmed telecopy, in
    each case addressed to a party. The addresses for such communications shall
    be:




If to the Company:

Orchid BioSciences, Inc.

4390 US Route One North

Princeton, NJ 08540

Telephone: (609) 750-2200

Fax: (609) 750-6400

Attn: Chief Financial Officer

with a copy simultaneously transmitted by like means to:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

Telephone: (617) 542-6000

Fax: (617) 542-2241

Attn: John J. Cheney, III, Esq.



and if to any Investor, at such address as such
  Investor shall have provided in writing to the Company, or at such other address
  as each such party furnishes by notice given in accordance with this Section
  11(b).


  (c)     Failure
    of any party to exercise any right or remedy under this Agreement or otherwise,
    or delay by a party in exercising such right or remedy, shall not operate
    as a waiver thereof.




  (d)     This
    Agreement shall be governed by and construed in accordance with the laws of
    the State of Delaware applicable to contracts made and to be performed in
    the State of Delaware. Each of the Company and the Investor irrevocably consents
    to the jurisdiction of the United States federal courts and the state courts
    located in the State of Delaware in any suit or proceeding based on or arising
    under this Agreement and irrevocably agrees that all claims in respect of
    such suit or proceeding may be determined in such courts. Each of the Company
    and the Investor irrevocably waives the defense of an inconvenient forum to
    the maintenance of such suit or proceeding. Each of the Company and the Investor
    further agrees that service of process mailed by first class mail shall be
    deemed in every respect effective service of process in any such suit or proceeding.
    Nothing herein shall affect the Company’s or the Investors’ right
    to serve process in any o ther manner permitted by law. Each of the Company
    and the Investor agrees that a final non-appealable judgment in any such suit
    or proceeding shall be conclusive and may be enforced in other jurisdictions
    by suit on such judgment or in any other lawful manner. 



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  (e)     This
    Agreement, the Securities Purchase Agreement (including all schedules and
    exhibits thereto) and the Warrants constitute the entire agreement among the
    parties hereto with respect to the subject matter hereof and thereof. There
    are no restrictions, promises, warranties or undertakings, other than those
    set forth or referred to herein and therein. This Agreement, the Securities
    Purchase Agreement and the Warrants supersede all prior agreements and understandings
    among the parties hereto with respect to the subject matter hereof and thereof.




  (f)     Subject
    to the requirements of Section 9 hereof, this Agreement shall inure to the
    benefit of and be binding upon the successors and assigns of each of the parties
    hereto.




  (g)     The
    headings in this Agreement are for convenience of reference only and shall
    not limit or otherwise affect the meaning hereof.




  (h)     This
    Agreement may be executed in two or more counterparts, each of which shall
    be deemed an original but all of which shall constitute one and the same agreement.
    This Agreement, once executed by a party, may be delivered to the other party
    hereto by facsimile transmission of a copy of this Agreement bearing the signature
    of the party so delivering this Agreement.




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




  (j)     All
    consents, approvals and other determinations to be made by the Investors pursuant
    to this Agreement shall be made by the Investors holding a majority in interest
    of the outstanding Registrable Securities (determined as if all shares of
    Preferred Stock and Warrants then outstanding had been converted into or exercised
    for Registrable Securities) held by all Investors.




  (k)     The
    initial number of Registrable Securities included on any Registration Statement
    and each increase to the number of Registrable Securities included thereon
    shall be allocated pro rata among the Investors based on the number of Registrable
    Securities held by each Investor at the time of such establishment or increase,
    as the case may be. In the event an Investor shall sell or otherwise transfer
    any of such holder’s Registrable Securities, each transferee shall be
    allocated a pro rata portion of the number of Registrable Securities included
    on a Registration Statement for such transferor. Any shares of Common Stock
    included on a Registration Statement and which remain allocated to any person
    or entity which does not hold any Registrable Securities shall be allocated
    to the remaining Investors, pro rata based on the number of shares of Registrable
    Securities then held by such Investors. For the avoidance of doubt, the number
    of Registrable Secu rities held by any Investor shall be determined as if
    all shares of Preferred Stock and Warrants then outstanding were converted
    into or exercised for Registrable Securities.




  (l)     Each
    party to this Agreement has participated in the negotiation and drafting of
    this Agreement. As such, the language used herein shall be deemed to be the
    language chosen by the parties hereto to express their mutual intent, and
    no rule of strict construction will be applied against any party to this Agreement.



15








  (m)     For
    purposes of this Agreement, the term “business day” means any day
    other than a Saturday or Sunday or a day on which banking institutions in
    the State of New York are authorized or obligated by law, regulation or executive
    order to close, and the term “trading day” means any day on which
    NNM, or if the Common Stock is not then traded on NNM the principal securities
    exchange or trading market where the Common Stock is then listed or traded,
    is open for trading.



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  IN WITNESS WHEREOF, the parties
    have caused this Agreement to be duly executed as of the date first above
    written.



	ORCHID BIOSCIENCES, INC.
	 	 	 
	By:	 /s/ Andrew P. Savadelis	 
	 	
	 
	Name:  Andrew P. Savadelis
	Its:  Sr. Vice President,
      Finance & Chief Financial Officer
	 	 	 
	INITIAL INVESTORS:
	 	 	 
	SDS MERCHANT FUND, LP
	 	 	 
	By:	 /s/ Steve Derby	 
	 	
	 
	Name:  Steve Derby	 
	Title:  Managing Member	 
	 	 	 
	BAYSTAR CAPITAL II, L.P.	 
	 	 	 
	By:	 /s/ Steve Derby	 
	 	
	 
	Name:  Steve Derby	 
	Title:  Portfolio Manager	 
	 	 	 
	DMG LEGACY FUND LLC
	 	 	 
	By:	 /s/ Thomas McAuley	 
	 	
	 
	Name:  Thomas McAuley	 
	Title:  Chief Investment
      Officer	 
	 	 	 
	DMG LEGACY INSTITUTIONAL FUND
      LLC
	 	 	 
	By:	 /s/ Thomas McAuley	 
	 	
	 
	Name:  Thomas McAuley	 
	Title:  Chief Investment
      Officer	 
	 	 	 
	DMG LEGACY INTERNATIONAL LTD.
	 	 	 
	By:	 /s/ Thomas McAuley	 
	 	
	 
	Name:  Thomas McAuley	 
	Title:  Chief Investment
      Officer	 


17