Exhibit 10.1


 


 


REGISTRATION RIGHTS AGREEMENT


 


 


 


August
22, 2003


 


SG COWEN SECURITIES CORPORATION


c/o SG Cowen Securities Corporation


1221 Avenue of the Americas


New York, New York 10021


 


Dear Ladies and Gentlemen:


 


Ciphergen
Biosystems, Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to you (the “Initial Purchaser”), upon the terms set forth in a purchase
agreement dated August 18, 2003 (the “Purchase Agreement”), $25,000,000
principal amount of its 4.50% Convertible Senior Notes due 2008 (the “Firm
Securities”).  The Company also proposes
to issue and sell to you, upon the terms and conditions set forth in Section 3
of the Purchase Agreement, up to an additional $5,000,000 principal amount of
its 4.50% Convertible Senior Notes due 2008 (the “Optional Securities”).  The Firm Securities and the Optional
Securities are herein collectively referred to as the Securities.  As an inducement to you to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations thereunder,
the Company agrees with you, for the benefit of the holders (including the
Initial Purchaser) of the Securities, as follows:


1.     Definitions.  Capitalized terms used but not specifically
defined herein have the respective meanings ascribed thereto in the Purchase
Agreement.  As used in this Agreement,
the following terms shall have the following meanings:


“Additional
Interest Accrual Period” has the meaning set forth in Section 3 hereof.


“Additional
Interest Amount” has the meaning set forth in Section 3 hereof.


“Additional
Interest Payment Date” means each March 1 and September 1.


“Affiliate”
means with respect to any specified person, an “affiliate,” as defined in Rule
144, of such person.


“Amendment
Effectiveness Deadline Date” has the meaning set forth in Section 2(d)(i)
hereof.


 


 

















 


“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.


“Commission”
means the Securities and Exchange Commission.


“Common
Stock” means the shares of common stock, $0.0001 par value, of the Company,
together with the rights evidenced by such Common Stock to the extent provided
in the Preferred Shares Rights Agreement dated February 28, 2002 by and between
the Company and Continental Stock & Transfer Company, and any other shares
of common stock as may constitute “Common Stock” for purposes of the Indenture,
including the Underlying Common Stock.


“Conversion
Price” has the meaning assigned such term in the Indenture.


“Deferral
Notice” has the meaning set forth in Section 4(h)(ii) hereof.


“Deferral
Period” has the meaning set forth in Section 4(h)(ii) hereof.


“Effectiveness
Deadline Date” has the meaning set forth in Section 2(a) hereof.


“Effectiveness
Period” means the period commencing on the date hereof and ending on the date
that is the earliest to occur of:


·        
the date when all of the Registrable Securities have
been sold pursuant to the Shelf Registration Statement or Rule 144 under the
Securities Act, or any similar provision then in force, but not Rule 144A;


·        
the expiration of the holding period under Rule
144(k) under the Securities Act applicable to Holders that are not affiliates
of the Company;


·        
the date when all of the Registrable Securities have
ceased to be outstanding (whether as a result of the repurchase and
cancellation, conversion or otherwise); and


·        
August 22, 2005.


“Event”
has the meaning set forth in Section 3 hereof.


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.


“Filing
Deadline Date” has the meaning set forth in Section 2(a) hereof.


 

















 


“Holder”
means a Person who owns, beneficially or otherwise, Registrable Securities.


“Holders’
Information” has the meaning set forth in Section 7(a) hereof.


“Indenture”
means the Indenture, dated as of the Closing Date, between the Company and U.S.
Bank National Association, as trustee, pursuant to which the Notes are being
issued.


“Initial
Purchaser” has the meaning set forth in the preamble hereof.


“Initial
Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.


 “Material Event” has the meaning set forth in
Section 4(h) hereof.


“Notes”
means the 4.50% Convertible Senior Notes due 2008 of the Company to be
purchased pursuant to the Purchase Agreement.


“Notice
and Questionnaire” means a written notice delivered to the Company containing
substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum of the Company
dated the date hereof relating to the Notes, as such notice may be amended by
the Company upon the advice of counsel experienced in such matters, to the
extent reasonably necessary to ensure compliance with applicable law.


“Notice
Holder” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.


“Purchase
Agreement” has the meaning set forth in the preamble hereof.


“Prospectus”
means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.


“Record
Holder” means with respect to any Additional Interest Payment Date relating to
any Notes or Underlying Common Stock as to which any Additional Interest Amount
has accrued, the registered holder of such Note or Underlying Common Stock on
the February 15 immediately preceding an Additional Interest Payment Date
occurring on a March 1, and on the August 15 immediately preceding an
Additional Interest Payment Date occurring on a September 1.


“Registrable
Securities” means the Notes until such Notes have been converted into the
Underlying Common Stock and, at all times subsequent to any such


 

















 


conversion,
the Underlying Common Stock and any securities into or for which such
Underlying Common Stock has been converted or exchanged, and any security
issued with respect thereto upon any stock dividend, split or similar event
until, in the case of any such security, the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it, (ii) expiration of the holding period that
would be applicable thereto for non-affiliates of the Company, under Rule
144(k), (iii) its sale to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the Securities Act or (iv)
August 22, 2005.


“Registration
Statement” means any registration statement of the Company that covers any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such registration statement.


“Restricted
Securities” means “restricted securities” as defined in Rule 144.


“Rule
144” means Rule 144 under the Securities Act, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission.


“Rule
144A” means Rule 144A under the Securities Act, as such rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission.


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.


“Shelf
Registration Statement” has the meaning set forth in Section 2(a) hereof.


“Special
Counsel” means Skadden, Arps, Slate, Meagher & Flom LLP or one such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities, but which may, with the written consent of the Initial
Purchaser (which shall not be unreasonably withheld, delayed or conditioned),
be another law firm experienced in securities law matters designated by the
Company, the reasonable fees and expenses of which will be paid by the Company
pursuant to Section 6 hereof.  For
purposes of determining the holders of a majority of the Registrable Securities
in this definition, Holders of Notes shall be deemed to be the Holders of the
number of shares of Underlying Common Stock into which such Notes are or would
be convertible as of the date the consent is requested.


“Subsequent
Shelf Registration Statement” has the meaning set forth in Section 2(b) hereof.


“TIA”
means the Trust Indenture Act of 1939, as amended.


 

















 


“Trustee”
means U.S. Bank National Association, the Trustee under the Indenture.


“Underlying
Common Stock” means the Common Stock into which the Notes are convertible or
issued upon any such conversion.


2.     Registered Offer.


(a)           The
Company shall prepare and file or cause to be prepared and filed with the
Commission, as soon as practicable but in any event by the date (the “Filing
Deadline Date”) sixty (60) days after the Closing Date, a Registration
Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a “Shelf Registration Statement”)
registering the resale from time to time by Holders thereof of all of the
Registrable Securities (the “Initial Shelf Registration Statement”).  The Initial Shelf Registration Statement
shall be on Form S-3 or, if unavailable, another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance with the methods of distribution reasonably requested by the Holders
and set forth in the Initial Shelf Registration Statement.  The Company shall use its reasonable efforts
to cause the Initial Shelf Registration Statement to be declared effective
under the Securities Act as promptly as is practicable but in any event by the
date (the “Effectiveness Deadline Date”) that is one hundred eighty (180) days
after the Closing Date, and to keep the Initial Shelf Registration Statement
(or any Subsequent Shelf Registration Statement) continuously effective under
the Securities Act until the expiration of the Effectiveness Period.  At the time the Initial Shelf Registration
Statement is declared effective, each Holder that became a Notice Holder on or
prior to the date five (5) Business Days prior to such time of effectiveness
shall be named as a selling securityholder in the Initial Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of Registrable Securities in
accordance with applicable law.  None of
the Company’s security holders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company’s securities in
the Shelf Registration Statement.


(b)           If the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
all Registrable Securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Registrable Securities),
the Company shall use its reasonable efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof including, if reasonably
necessary, by amending the Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Registrable Securities (a
“Subsequent Shelf Registration Statement”). 
If a Subsequent Shelf Registration Statement is filed, the Company shall
use its reasonable efforts to cause the Subsequent Shelf Registration Statement
to become effective as promptly as is practicable after such filing and to keep
such Registration


 

















 


Statement
(or subsequent Shelf Registration Statement) continuously effective until the
end of the Effectiveness Period.


(c)           The Company shall supplement and
amend the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act or as necessary
to name a Notice Holder as a selling securityholder pursuant to Section (d)
below.


(d)           Each Holder agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 4(h).  Each
holder who elects to sell Registrable Securities pursuant to a Shelf
Registration Statement agrees to complete and deliver a Notice and
Questionnaire to the Company and that it will be bound by the terms and
conditions of the Notice and Questionnaire and this Agreement.  From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, upon the later
of (x) ten (10) Business Days after the date a properly completed and executed
Notice and Questionnaire is delivered pursuant to Section 10(b) hereof and any
information reasonably requested by the Company in addition to the Notice and
Questionnaire has been received or (y) ten (10) Business Days after the
expiration of any Deferral Period in effect when such Notice and Questionnaire
is delivered or put into effect within ten (10) Business Days of such delivery
date:


(i)                    if required by applicable
law, file with the SEC a post-effective amendment to the Shelf Registration
Statement or prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that
the Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus
in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with applicable law and,
if the Company shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as is practicable,
but in any event by the date (the “Amendment Effectiveness Deadline Date”) that
is forty-five (45) days after the date such post-effective amendment is
required by this clause to be filed;


(ii)                   provide such Holder copies of
any documents filed pursuant to Section 2(d)(i); and


(iii)                  notify such Holder as promptly
as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i);


provided,
that if such Notice and Questionnaire is delivered during a Deferral Period,
the Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral


 

















 


Period
in accordance with Section 4(h). 
Notwithstanding anything contained herein to the contrary, (i) the
Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in any Registration Statement or related
Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be extended
by up to ten (10) Business Days from the expiration of a Deferral Period (and
the Company shall incur no obligation to pay Additional Interest during such
extension) if such Deferral Period shall be in effect on the Amendment
Effectiveness Deadline Date.


3.     Additional
Interest.  The parties hereto agree
that the Holders of Registrable Securities will suffer damages, and that it
would not be feasible to ascertain the extent of such damages with precision,
if, other than as permitted hereunder,


(a)           the Initial Shelf Registration
Statement has not been filed on or prior to the Filing Deadline Date,


(b)           the Initial Shelf Registration
Statement has not been declared effective under the Securities Act on or prior
to the Effectiveness Deadline Date, or


(c)           the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in respect of such
period pursuant to Section 4(h) hereof.


Each
event described in any of the foregoing clauses (a) through (c) is individually
referred to herein as an “Event.” For purposes of this Agreement, each Event
set forth above shall begin on the dates set forth in the table below and shall
end on the ending dates set forth in the table below:


	
  Type of

  Event by

  Clause

  	
   

  	
  Beginning Date

  	
   

  	
  Ending Date

  
	
  (a)

  	
   

  	
  Filing Deadline Date

  	
   

  	
  the date the Initial Shelf
  Registration Statement is filed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Effectiveness Deadline
  Date

  	
   

  	
  the date the Initial Shelf
  Registration Statement becomes effective under the Securities Act

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  the date on which the
  aggregate duration of Deferral Periods in any period exceeds the number of
  days permitted by Section 4(h)

  	
   

  	
  termination of the
  Deferral Period that caused the limit on the aggregate duration of Deferral
  Periods to be exceeded

  



 


 

















 


Commencing
on (and including) any date that an Event has begun and ending on (but excluding)
the next date on which there are no Events that have occurred and are
continuing (an “Additional Interest Accrual Period”), the Company shall pay, as
Additional Interest and not as a penalty, to Record Holders of Registrable
Securities an amount (the “Additional Interest Amount”) accruing, (1) for each
day to and including the 90th day in the Additional Interest Accrual Period,
(i) in respect of any Note, at a rate per annum equal to 0.25% of the aggregate
principal amount of such Note and (ii) in respect of each share of outstanding
Underlying Common Stock that is a Registrable Security at a rate per annum
equal to 0.25% on the Conversion Price on such date, as the case may be and (2)
for each day from and including the 91st day in the Additional Interest Accrual
Period, (i) in respect of any Note, at a rate per annum equal to 0.50% of the
aggregate principal amount of such Note and (ii) in respect of each share of
outstanding Underlying Common Stock that is a Registrable Security at a rate
per annum equal to 0.50% on the Conversion Price on such date, as the case may
be; provided that in the case of an Additional Interest Accrual Period that is
in effect solely as a result of an Event of the type described in clause (c) of
the preceding paragraph, such Additional Interest Amount shall be paid only to
the Holders (as set forth in the succeeding paragraph) that have delivered
Notices and Questionnaires that caused the Company to incur the obligations set
forth in Section 2(d) the non-performance of which is the basis of such
Event.  In calculating the Additional
Interest Amount on any date on which no Notes are outstanding, the Conversion
Price and the Additional Interest Amount payable with respect to shares of
Common Stock that are Registrable Securities shall be calculated as if the
Notes were still outstanding. 
Notwithstanding the foregoing, no Additional Interest Amount shall
accrue as to any Registrable Security from and after the earlier of (x) the
date such security is no longer a Registrable Security and (y) expiration of
the Effectiveness Period.  The rate of
accrual of the Additional Interest Amount with respect to any period shall not
exceed 0.50%, notwithstanding the occurrence of multiple concurrent Events.


The
Additional Interest Amount shall accrue from the first day of the applicable
Additional Interest Accrual Period, and shall be payable on each Additional
Interest Payment Date during the Damage Accrual Period (and, without
duplication, on the Additional Interest Payment Date next succeeding the end of
the Additional Interest Accrual Period if the Additional Interest Accrual
Period does not end on an Additional Interest Payment Date) to the Record
Holders of the Registrable Securities entitled thereto; provided that any
Additional Interest Amount accrued with respect to any Note or portion thereof
redeemed by the Company on a redemption date or converted into Underlying
Common Stock on a conversion date prior to the Additional Interest Payment
Date, shall, in any such event, be paid instead to the Holder who submitted
such Note or portion thereof for redemption or conversion on the applicable
redemption date or conversion date, as the case may be, on such date (or
promptly following the conversion date, in the case of conversion); provided
further, that, in the case of an Event of the type described in clause (c) of
the first paragraph of this Section 3, such Additional Interest Amount shall be
paid only to the Holders entitled thereto pursuant to such first paragraph by
check mailed to the address set forth in the Notice and Questionnaire delivered
by such Holder.  The Trustee shall be
entitled, on behalf of registered holders of Notes or Underlying Common Stock,
to seek any available remedy for the enforcement of this


 

















 


Agreement,
including for the payment of such Additional Interest Amount.  Notwithstanding the foregoing, the parties
agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which an Additional Interest Amount is expressly
provided shall be such Additional Interest Amount.  Nothing shall preclude any Holder from pursuing or obtaining
specific performance or other equitable relief with respect to this Agreement.


All
of the Company’s obligations set forth in this Section 3 that are outstanding
with respect to any Registrable Security at the time such security ceases to be
a Registrable Security shall survive until such time as all such obligations
with respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 10(m)).


The
parties hereto agree that the Additional Interest Amount provided for in this
Section 3 constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.


4.     Registration
Procedures.  In connection with the
registration obligations of the Company under Section 2 hereof, during the
Effectiveness Period, the Company shall:


(a)           Prepare and file with the Commission
a Registration Statement or Registration Statements on any appropriate form
under the Securities Act available for the sale of the Registrable Securities
by the Holders thereof in accordance with the reasonably requested method or
methods of distribution thereof, and use its reasonable efforts to cause each
such Registration Statement to become effective and remain effective as
provided herein; provided that before filing any Registration Statement or
Prospectus or any amendments or supplements thereto with the Commission, the
Company shall furnish to the Initial Purchaser and the Special Counsel of such
offering, if any, copies of all such documents proposed to be filed at least
three (3) Business Days prior to the filing of such Registration Statement or
amendment thereto or Prospectus or supplement thereto.  The Company shall use its reasonable best
efforts to reflect in each such document, when so filed with the Commission,
such comments as the Initial Purchaser and the Special Counsel may propose.


(b)           Subject to Section 4(h), prepare and
file with the Commission such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable period specified in Section 2(a);
cause the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and use its
reasonable best efforts to comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness Period in accordance with
the intended


 

















 


methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.


(c)           As promptly as practicable give
notice to the Notice Holders, the Initial Purchaser and the Special Counsel,
(i) when any Prospectus, Registration Statement or post-effective amendment to
a Registration Statement (other than a post-effective amendment filed solely to
amend the disclosure in such Registration Statement regarding any named or
unnamed selling securityholders) has been filed with the Commission and, with
respect to a Registration Statement or any post-effective amendment, when the
same has been declared effective, (ii) of any request, following the
effectiveness of the Initial Shelf Registration Statement under the Securities
Act, by the Commission or any other federal or state governmental authority for
amendments or supplements to any Registration Statement or related Prospectus
or for additional information, (iii) of the issuance by the Commission or any
other federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (v) of the occurrence of, but not the nature of or details
concerning, a Material Event.


(d)           Use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction in which they have been qualified for sale, in either case
as promptly as practicable, and provide prompt notice to each Notice Holder and
the Initial Purchaser of the withdrawal of any such order.


(e)           As promptly as practicable furnish to
each Notice Holder, the Special Counsel and the Initial Purchaser, upon request
and without charge, at least one (1) conformed copy of the Registration
Statement and any amendment thereto, including exhibits and if requested, all
documents incorporated or deemed to be incorporated therein by reference.


(f)            During the Effectiveness Period, deliver
to each Notice Holder, in connection with any sale of Registrable Securities
pursuant to a Registration Statement, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby consents (except
during such periods that a Deferral Notice is outstanding and has not been
revoked) to the use of such Prospectus or each amendment or supplement thereto
by each Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.


 

















 


(g)           Prior to any public offering of the
Registrable Securities pursuant to a Registration Statement, use its reasonable
best efforts to register or qualify or cooperate with the Notice Holders and
the Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any Notice Holder reasonably requests
in writing (which request may be included in the Notice and Questionnaire);
prior to any public offering of the Registrable Securities pursuant to the
Shelf Registration Statement, use its reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder’s offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts reasonably necessary to
legally permit the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the relevant Registration Statement and
the related Prospectus; provided that the Company will not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Agreement or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then
so subject.


(h)           Upon (A) the issuance by the
Commission of a stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings with respect to the
Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act,
(B) the occurrence of any event or the existence of any fact (a “Material
Event”) as a result of which any Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus:


(i)                    in the case of clause (B)
above, subject to the next sentence, as promptly as practicable prepare and
file, if necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the next


 

















 


sentence,
use its reasonable efforts to cause it to be declared effective as promptly as
is practicable, and


(ii)                   give notice to the Notice
Holders that the availability of the Shelf Registration Statement is suspended
(a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice
Holder agrees not to sell any Registrable Securities pursuant to the Registration
Statement until such Notice Holder’s receipt of copies of the supplemented or
amended Prospectus provided for in clause (i) above, or until it is advised in
writing by the Company that the Prospectus may be used, and has received copies
of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.


The
Company will use its reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as
is practicable, (y) in the case of clause (B) above, as soon as, in the
reasonable judgment of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company and (z)
in the case of clause (C) above, as soon as in the reasonable discretion of the
Company, such suspension is no longer appropriate.  The Company shall be entitled to exercise its right under this
Section 4(h) to suspend the availability of the Shelf Registration Statement or
any Prospectus for a reasonable period of time, and any such period during
which the availability of the Registration Statement and any Prospectus is
suspended (the “Deferral Period”) shall, without incurring any obligation to
pay Additional Interest pursuant to Section 3, not exceed 30 days in any
three-month period or 90 days in any twelve-month period.


(i)            Comply with all applicable rules and
regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) for a 12-month period
commencing on the first day of the first fiscal quarter of the Company commencing
after the effective date of a Registration Statement, which statements shall be
made available no later than 45 days after the end of the 12-month period or 90
days if the 12-month period coincides with the fiscal year of the Company.


(j)            Cooperate with each Notice Holder to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities sold or to be sold pursuant to a Registration Statement,
which certificates shall not bear any restrictive legends (unless required by
applicable law), and cause such Registrable Securities to be in such
denominations as are permitted by the Indenture and registered in such names as
such Notice Holder may request in writing at least two (2) Business Day prior
to any sale of such Registrable Securities.


(k)           Provide a CUSIP number for all
Registrable Securities covered by each Registration Statement not later than
the effective date of such Registration Statement and provide the Trustee and
the transfer agent for the Common Stock with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.


 

















 


(l)            Cooperate and assist in any filings
required to be made with the National Association of Securities Dealers, Inc.


(m)          Upon (i) the filing of the Initial
Shelf Registration Statement and (ii) the effectiveness of the Initial Shelf
Registration Statement, announce the same, in each case by release to
PRNewswire.


(n)           In connection with any Shelf
Registration Statement, the Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as Holders of a majority of the Registrable
Securities being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate any disposition of the Registrable Securities
pursuant to such Shelf Registration Statement.


(o)           In connection with any Shelf
Registration Statement, the Company shall (i) make reasonably available for inspection
by a representative of, and Special Counsel acting for, Holders of a majority
of the Registrable Securities being sold and any underwriter participating in
any disposition of the Registrable Securities pursuant to such Shelf
Registration Statement, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and (ii)
use its reasonable best efforts to have its officers, directors, employees,
accountants and counsel supply all relevant information reasonably requested by
such representative, Special Counsel or any such underwriter (an “Inspector”)
in connection with such Shelf Registration Statement.


(p)           In connection with any Shelf
Registration Statement, the Company shall, if requested by Holders of a
majority of the Registrable Securities being sold, their Special Counsel or the
managing underwriters (if any) in connection with such Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to deliver
an opinion relating to the Shelf Registration Statement and the Registrable
Securities in customary form, (ii) its officers to execute and deliver all
customary documents and certificates requested by Holders of a majority of the
Registrable Securities being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to provide a
comfort letter in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.  For purposes of
determining the holders of a majority of the Registrable Securities in this
paragraph (p) and in paragraphs (n) and (o) above, Holders of Notes shall be
deemed to be the Holders of the number of shares of Underlying Common Stock
into which such Notes are or would be convertible as of the relevant date.


5.     Holder’s
Obligations.  Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder shall be entitled to
sell any of such Registrable Securities pursuant to a Registration Statement or
to receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a properly completed and executed Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the


 

















 


information set forth in the next
sentence.  Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such
Notice Holder not misleading and any other information regarding such Notice
Holder and the distribution of such Registrable Securities as the Company may
from time to time reasonably request.


 


6.     Registration
Expenses.  The Company will bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and the Company will reimburse the Initial
Purchasers and the Holders for the reasonable fees and disbursements of one
firm of attorneys chosen by the Holders of a majority in aggregate principal
amount of the Securities and the Exchange Securities to be sold pursuant to
each Registration Statement (the “Special Counsel”) acting for the Initial
Purchasers or Holders in connection therewith, as and when incurred.


7.     Indemnification.


(a)           Indemnification
of Holders.  The Company
shall indemnify and hold harmless each Holder (including the Initial Purchaser)
and each person, if any, who controls such Holder within the meaning of the
Securities Act (collectively referred to for the purposes of this Section 7 as
a Holder) against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, without limitation, any loss, claim,
damage, liability or action relating to purchases and sales of Registrable
Securities), to which that Holder may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state in any Registration Statement or any Prospectus or in any amendment or
supplement thereto a material fact required to be stated therein or necessary
to make the statements therein not misleading, and shall reimburse each Holder
for any legal or other expenses reasonably incurred by that Holder in connection
with investigating or preparing to defend or defending against or appearing as
a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
foregoing indemnification agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Holder from whom the person asserting any
such loss, claim, damage or liability purchased Securities, if (i) a copy of
the preliminary prospectus (as then amended or supplemented) was required by
law to be delivered to such person at or prior to the written confirmation of
the sale of Securities to such person, (ii) a copy of the final prospectus (as
then amended or supplemented) was not sent or given to such person by or on
behalf of such Holder and (iii) the final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability; and further provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary prospectus or Registration Statement or any such amendment or
supplement in reliance upon and in conformity with any information included
therein in


 

















 


reliance upon or in conformity with written
information furnished to the Company by or on behalf of any Holder specifically
for use therein (the “Holders’ Information”).


(b)           Indemnification
of Company, Directors and Officers. 
Each Holder, severally and not jointly, agrees to indemnify and hold
harmless the Company, its respective directors, and each person, if any, who
controls the Company within the meaning of the Securities Act (collectively
referred to for the purposes of this Section 7 as the Company), against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in a Prospectus or Registration Statement or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any Holders’
Information furnished to the Company by or on behalf of that Holder
specifically for use therein, and shall reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; provided however, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement.


(c)           Actions;
Notification.  Promptly after
receipt by an indemnified party under this Section 7 of notice of any claim or
the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 7 except to the extent it has been materially prejudiced by such
failure; and, provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7.  If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. 
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified


 

















 


party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in
writing by the Holders of a majority in aggregate principal amount of the
Registrable Securities, if the indemnified parties under this Section 7 consist
of any Holder or any of its respective officers, employees or controlling
persons, or by the Company, if the indemnified parties under this Section 7
consist of the Company or any of its directors, officers, employees or
controlling persons.  Each indemnified
party, as a condition of the indemnity agreements contained in Sections 7(a)
and 7(b), shall use all reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim.  Subject to the provisions of Section 7(d) below, no indemnifying
party shall be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by reason
of such settlement or judgment.


(d)           Settlement
without Consent if Failure to Reimburse.  If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.


(e)           Contribution.  If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an indemnified party
under Section 7(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and a
Holder with respect to the sale by such Holder of Registrable Securities on the
other or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the


 

















 


relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and such Holder on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations.  The relative
benefits received by the Company on the one hand and a Holder on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Registrable Securities (before
deducting expenses) received by the Company as set forth on the cover of the
offering memorandum bear to the total proceeds received by such Holder with
respect to its sale of Registrable Securities. 
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or to any Holders’
Information supplied by such Holder on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. 
The Company and the Holders agree that it would not be just and
equitable if contributions pursuant to this Section 7(e) were to be determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein.  The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7(e) shall be deemed to include, for purposes of this
Section 7(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.  Notwithstanding the
provisions of this Section 7(e), no Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the
Registrable Securities sold by such Holder to any purchaser exceeds the amount
of any damages which such Holder has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission.  No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.


Any Holder’s obligations to contribute as
provided in this Section 7(e) are several and not joint.


The obligations of the Company and the
Holders in this Section 7 are in addition to any other liability which the
Company or the Holders, as the case may be, may otherwise have.


8.     Rules
144 and 144A.  The Company shall use
its reasonable best efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the
written request of any Holder, make publicly available other information so
long as necessary to permit sales of such Holder’s securities pursuant to Rules
144 and 144A.  The Company covenants
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including,


 

















 


without limitation, the requirements of Rule
144A(d)(4)).  Upon the written request
of any Holder, the Company shall deliver to such Holder a written statement as
to whether it has complied with such requirements.  Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.


 


9.     Underwritten
Registrations.  If any of the
Transfer Restricted Securities covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which shall not be unreasonably withheld or delayed),
and such Holders shall be responsible for all underwriting commissions and
discounts in connection therewith.


10.   Miscellaneous.


(a)           Amendments
and Waivers.  The provisions
of this Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority of the then outstanding Underlying
Common Stock constituting Registrable Securities (with Holders of Notes deemed
to be the Holders, for purposes of this Section 10(a), of the number of
outstanding shares of Underlying Common Stock into which such Notes are or
would be convertible as of the date on which such consent is requested).  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence, and provided further that no modification may change
the provisions relating to the payment of Additional Interest without the
consent of each Holder of Registrable Securities.  Notwithstanding the foregoing sentence, this Agreement may be
amended by written agreement signed by the Company and the Initial Purchaser,
without the consent of the Holders of Registrable Securities, to cure any
ambiguity or to correct or supplement any provision contained herein that may
be defective or inconsistent with any other provision contained herein, or to
make such other provisions in regard to matters or questions arising under this
Agreement that shall not adversely affect the interests of the Holders of
Registrable Securities.  Each Holder of
Registrable Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to
this Section 10(a), whether or not any notice, writing or marking indicating
such amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.


 

















 


(b)           Notices.  All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight delivery:


(i)                    if to a Holder, at the most
current address given by such Holder to the Company in accordance with the
provisions of this Section 10(b), which address initially is, with respect to
each Holder, the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to SG Cowen Securities Corporation;


(ii)                   if to you, initially at your
address set forth in the Purchase Agreement; and


(iii)                  if to the Company, initially
at the address of the Company set forth in the Purchase Agreement.


All
such notices and communications shall be deemed to have been duly given:  when delivered by hand, if personally
delivered; one business day after being delivered to a next-day air courier;
five business days after being deposited in the mail; and when receipt is
acknowledged by the recipient’s telecopier machine, if telecopied.


(c)           Successors
and Assigns.  Any person who
purchases any Registrable Securities from the Initial Purchaser shall be
deemed, for purposes of this Agreement, to be an assignee of the Initial
Purchaser.  This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon each Holder of
any Registrable Securities, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement, applicable law or the
Indenture.  If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities, such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such person shall be entitled to receive the benefits hereof.


(d)           Counterparts.  This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopies) and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.


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


 

















 


(f)            Governing Law; Submission to Jurisdiction.


THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.


(g)           No
Inconsistent Agreements.  The
Company has not and shall not, on or after the date of this Agreement, enter
into any agreement that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof.  The Company has not previously entered into
any agreement which remains in effect granting any registration rights with
respect to any of its debt securities to any person.  Without limiting the generality of the foregoing, without the
written consent of the holders of a majority in aggregate principal amount of
the then outstanding Registrable Securities, the Company shall not grant to any
person the right to request the Company to register any debt securities of the
Company under the Securities Act unless the rights so granted are not in
conflict or inconsistent with the provisions of the Agreement.


(h)           No
Piggyback on Registrations. 
Neither the Company, nor any of its security holders (other than the
holders of Transfer Restricted Securities in such capacity) shall have the
right to include any securities of the Company in any Shelf Registration or
Registered Exchange Offer other than Transfer Restricted Securities.


(i)            Severability.  The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.  If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction.  It
is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.


(j)            Remedies.  In the event of a breach by the Company, or
by any Holder of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery
of damages for a breach by the Company of its obligations under Section 2 or 4
hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement.  The Company and each holder
of Transfer Restricted Securities agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in the event
of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.


 

















 


(k)           Approval
of Holders.  Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than the Initial Purchaser or subsequent Holders if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.


(l)            Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and is
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and the registration rights granted by the Company with respect to the
Registrable Securities.  Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities.  This
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights. 
No party hereto shall have any rights, duties or obligations other than
those specifically set forth in this Agreement.  In no event will such methods of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.


(m)          Termination.  This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Section 6 or 7 hereof and the
obligations to make payments of and provide for Additional Interest under
Section 3 hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.


 


[Signature Page Follows]


 


 

















 


Please
confirm that the foregoing correctly sets forth the agreement among the Company
and you.


 


	
   

  	
   

  	
   

  	
  Very truly yours,

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CIPHERGEN BIOSYSTEMS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accepted as of the date
  first written above:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SG COWEN SECURITIES
  CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  
								



 


 


 


 


 


 


Registration Rights Agreement