Registration Rights Agreement


  Conformed Copy
  Exhibit 4.2
  REGISTRATION RIGHTS AGREEMENT
  among
  NPS PHARMACEUTICALS,
INC.
  as Issuer,
  and
  MORGAN STANLEY & CO. INCORPORATED
  and
  GOLDMAN, SACHS &
CO.,
  as Initial Purchasers
  Dated as of June 17, 2003






             REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as of June 17, 2003 between NPS
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., (the “Initial Purchasers”) pursuant to the Purchase Agreement dated
June 11, 2003 (the “Purchase Agreement”), between the Company and the Initial Purchasers.  In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement.  The execution of this Agreement is a condition to the closing under the Purchase Agreement.
            The
Company agrees with the Initial Purchasers, (i) for their benefit as Initial Purchasers and (ii) for the benefit of the beneficial owners (including the Initial Purchasers) from time to time of the Notes (as defined herein) and the beneficial owners
from time to time of the Underlying Common Stock (as defined herein) issued upon conversion of the Notes (each of the foregoing a “Holder” and together the “Holders”), as follows:
           Section 1.  Definitions.  Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement. 
As used in this Agreement, the following terms shall have the following meanings:
            “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) 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.
           
“Common Stock” means the shares of common stock, $0.001 par value per share, of the Company, together with the Rights evidenced by such common stock to the extent provided in the Rights Agreement dated as of December 4, 1996,
between the Company and American Stock Transfer & Trust Company, as amended, 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.
            “Damages Accrual Period” has the meaning set forth in Section 2(e) hereof.
            “Damages Payment Date” means each June 15 and December 15.
            “Deferral Notice” has the meaning set forth in Section 3(h) hereof.
           “Deferral Period” has the meaning set forth in Section 3(h) 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 all Registrable Securities have ceased to be Registrable
Securities.
            “Event” has the meaning set forth in Section 2(e) hereof.






             “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC promulgated thereunder.
            “Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.
 
          “Holder” has the meaning set forth in the second paragraph of this Agreement.
            “Indenture” means the Indenture, dated as of June 17, 2003, between the Company and U.S. Bank National Association, as trustee, pursuant to which the
Notes are being issued.
            “Initial Purchasers” means Morgan Stanley & Co. Incorporated and Goldman, Sachs &
Co.
            “Initial Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.
            “Issue Date” means June 17, 2003.
          
“Liquidated Damages Amount” has the meaning set forth in Section 2(e) hereof.
            “Material Event” has the
meaning set forth in Section 3(h) hereof.
            “Notes” means the 3% Convertible 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 June 11, 2003 relating to the Notes.
            “Notice Holder” means, on any date, any Holder that has delivered a Notice and Questionnaire to the Company on or prior to such date.
            “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 Damages Payment Date relating to any Notes or Underlying Common Stock as to which any Liquidated Damages Amount
has accrued, the registered holder of such Note or Underlying Common Stock on the June 1 immediately preceding a Damages Payment Date occurring on a June 15, and on the December 1 immediately preceding a Damages Payment Date occurring on a
December 15.
           “Registrable Securities” means the Notes until such Notes have been converted into or exchanged for 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, (A) 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 under Rule 144(k) or (iii) its sale to the public pursuant to Rule 144 under the Securities Act, and (B) as a result of the event or circumstance described 
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   in any of the foregoing clauses (i) through (iii), the legend with respect to transfer restrictions required under the Indenture is removed or removable in accordance with the
terms of the Indenture or such legend, as the case may be.
            “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 SEC.
            “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 SEC.
           “SEC” means the Securities and Exchange Commission.
            “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.
            “Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.
            “Special Counsel” means Davis Polk & Wardwell 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 Purchasers (which shall not be unreasonably withheld), be another nationally recognized 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 5 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.
            Section 2.  Shelf Registration.  (a)  The Company shall prepare and file or cause to be prepared and filed with the SEC, as soon as practicable but
in any event by the date (the “Filing Deadline Date”) ninety (90) days after the Issue 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 another appropriate form permitting registration of such Registrable Securities for resale by such Holders in accordance with the methods of distribution elected by the Holders and set forth in the Initial Shelf

 3






   Registration Statement.  The Company shall use its reasonable best 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 Issue 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 ten (10) 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 best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of
effectiveness amend 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 best 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 3(h).  Following the date that the Initial Shelf Registration Statement is declared effective, each Holder wishing to
sell Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire to the Company at least ten (10) Business Days prior to any intended distribution of Registrable Securities
under the Shelf Registration Statement.  Each Holder who elects to sell Registrable Securities pursuant to a Shelf Registration Statement agrees by submitting a Notice and Questionnaire to the Company, 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, as promptly as practicable after the date a Notice and Questionnaire is
delivered pursuant to Section 8(c), and in any event upon the later of (x) five (5) Business Days after such date or (y) five (5) Business Days after the expiration of any Deferral Period in effect when the Notice and Questionnaire is delivered or
put into effect within five (5) 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 
 

 4







	   
 	  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 best 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 3(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 Liquidated Damages during such extension) if such Deferral Period shall be in effect on the Amendment
Effectiveness Deadline Date.
            (e)     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,

	   
 	            (i)     the Initial Shelf Registration Statement has not been filed on or prior to the Filing
Deadline Date,
 
	   
 	   
 
	   
 	            (ii)     the Initial Shelf Registration Statement has not been declared effective under the Securities Act on
or prior to the Effectiveness Deadline Date,
 
	  
 	   
 
	   
 	            (iii)     the Company has failed to perform its obligations set forth in Section 2(d)(i) within the time
period required therein,
 
	   
 	   
 
	   
 	            (iv)     any post-effective amendment to a Shelf Registration Statement filed pursuant to Section 2(d)(i) has
not become effective under the Securities Act on or prior to the Amendment Effectiveness Deadline Date,
 
	   
 	   
 
	   
 	            (v)     the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in
respect of such period pursuant to Section 3(h) hereof, or
 
	   
 	   
 
	   
 	            (vi)     the number of Deferral Periods in any period exceeds the number permitted in respect of such period
pursuant to Section 3(h) hereof.
 

 Each event described in any of the foregoing clauses (i) through (vi) 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 dates set forth in the table below:
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	  Type of Event
by Clause
 	  
 	  Beginning Date
 	  
 	  Ending Date
 
	 
 	  
 	 
 	  
 	 
 
	  (i)
 	   
 	  Filing Deadline Date
 	   
 	  the date the Initial Shelf Registration Statement is filed
 
	  
 	  
 	   
 	   
 	   
 
	  (ii)
 	   
 	  Effectiveness Deadline Date
 	   
 	  the date the Initial Shelf Registration Statement is made or declared effective under the Securities Act
 
	  
 	   
 	   
 	   
 	   
 
	  (iii)
 	   
 	  the date by which the Company is required to perform its obligations under Section 2(d)(i)
 	   
 	  the date the Company performs its obligations set forth in Section 2(d)(i)
 
	  
 	   
 	   
 	   
 	   
 
	 (iv)
 	   
 	  the Amendment Effectiveness Deadline Date
 	   
 	  the date the applicable post-effective amendment to a Shelf Registration Statement becomes effective under the Securities Act
 
	  
 	   
 	   
 	   
 	   
 
	  (v)
 	   
 	  the date on which the aggregate duration of Deferral Periods in any period exceeds the number of days permitted by Section 3(h)
 	   
 	  termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods to be exceeded
 
	  
 	   
 	   
 	   
 	   
 
	 (vi)
 	   
 	  the date of commencement of a Deferral Period that causes the number of Deferral Periods to exceed the number permitted by Section 3(h)
 	   
 	  termination of the Deferral Period that caused the number of Deferral Periods to exceed the number permitted by Section 3 (h)
 

  For purposes of this Agreement, Events shall begin on the dates set forth in the table above and shall continue until the ending dates set forth in the table above.
            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 (a “Damages Accrual Period”), the Company shall pay, as liquidated damages and not as a penalty, to Record Holders of Registrable Securities an amount (the “Liquidated Damages Amount”) accruing, for each
day in the Damages Accrual Period, (i) in respect of any Note, at a rate per annum equal to 0.5% of the aggregate 
  6






   principal amount of such Note and (ii) in respect of each share of Underlying Common Stock that has been issued upon conversion of a Note at a rate per annum equal to 0.5% on
the Conversion Price on such date, as the case may be; provided in the case of a Damages Accrual Period that is in effect solely as a result of an Event of the type described in clause  (iii) or (iv) of the preceding paragraph, such
Liquidated Damages 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 Liquidated Damages Amount on any date on which no Notes are outstanding, the Conversion Price and the Liquidated Damages 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 Liquidated Damages 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 Liquidated Damages Amount with respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.
           The Liquidated Damages Amount shall accrue from the first day of the applicable
Damages Accrual Period, and shall be payable on each Damages Payment Date during the Damages Accrual Period (and on the Damages Payment Date next succeeding the end of the Damages Accrual Period if the Damages Accrual Period does not end on a
Damages Payment Date) to the Record Holders of the Registrable Securities entitled thereto; provided that any Liquidated Damages 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 Damages 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 (iii) or (iv) of the
first paragraph of this Section 2(e), such Liquidated Damages 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 Liquidated Damages 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 liquidated damages are expressly provided shall be such liquidated damages. 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 2(e) to pay any Liquidated Damages Amount that is 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 8(k)).
           The parties hereto agree that the liquidated damages provided for in this Section 2(e) constitute 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.
            Section 3.  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 SEC 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 intended method or methods of distribution thereof, and use its 

 7






   reasonable best 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 SEC, furnish to the Initial Purchasers 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.
           
(b)     Subject to Section 3(h), prepare and file with the SEC 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 Purchasers and the Special Counsel, (i) when any Prospectus,
prospectus supplement, Registration Statement or post-effective amendment to a Registration Statement has been filed with the SEC 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 SEC 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 SEC 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, (v) of the occurrence of, but not the nature of or details concerning, a Material Event and (vi) of the determination by the Company that a post-effective amendment to
a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall
apply.
            (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 at the
earliest possible moment, and provide immediate notice to each Notice Holder and the Initial Purchasers of the withdrawal of any such order.
           
(e)     As promptly as practicable furnish to each Notice Holder, the Special Counsel and the Initial Purchasers, upon request and without charge, at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including exhibits and all documents incorporated or deemed to be incorporated therein by reference.
          
(f)     During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if any, and the Initial Purchasers, 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 
  8






   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 or things
reasonably necessary or advisable to enable 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 SEC 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 best efforts to cause it to be declared effective as promptly as is practicable, and
 
	  
 	   
 
	   
 	            (ii)     give notice to the Notice Holders, and the Special Counsel, if any, 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
 

  9







	   
 	  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 best 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 sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter 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 3(h) to suspend the availability of the Shelf Registration Statement or any Prospectus, without incurring or accruing any
obligation to pay liquidated damages pursuant to Section 2(e), no more than one (1) time in any three month period or three (3) times in any twelve month period, 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 liquidated damages pursuant to Section 2(e), not exceed 30 days; provided that the aggregate duration of any Deferral Periods
shall not exceed 30 days in any three month period (or 60 days in any three month period in the event of a Material Event pursuant to which the Company has delivered a second notice as required below) or 90 days in any twelve (12) month period;
provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, the Company may, without incurring any obligation to pay
liquidated damages pursuant to Section 2(e), deliver to Notice Holders a second notice to the effect set forth above, which shall have the effect of extending the Deferral Period by up to an additional 30 days, or such shorter period of time as is
specified in such second notice.
            (i)     If requested in writing in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities, any broker-dealers, attorneys and accountants retained
by such Notice Holders, and any attorneys or other agents retained by a broker-dealer engaged by such Notice Holders, all relevant financial and other records and pertinent corporate documents and properties of the Company and its subsidiaries, and
cause the appropriate officers, directors and employees of the Company and its subsidiaries to make reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such
representative for the Notice Holders, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar “due diligence” examinations; provided that such persons shall
first agree in writing with the Company that any non-public information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in
connection with the filing of any Registration Statement or the use of any prospectus referred to in this Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by
any such person or (iv) such information becomes available to any such person from a source other than the Company and such source is not bound by a confidentiality agreement, and provided further that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by Special Counsel.  Any person legally compelled to disclose any such confidential information made
available for inspection shall provide the Company with prompt prior written notice of such requirement so that the Company may seek a protective order or other appropriate remedy.
 10






             (j)     Comply with all applicable rules and regulations of the SEC and make generally
available to its security holders 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.
            (k)     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, 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 one (1) Business Day prior to any sale of such Registrable Securities.
            (l)     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 appropriate certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
 
          (m)     Cooperate and assist in any filings required to be made with the National Association of Securities Dealers,
Inc.
            (n)     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 Reuters Economic Services and Bloomberg Business News.
          
Section 4.  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 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.  Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information relating to such Holder and its plan of distribution is as set forth in the Prospectus delivered by such Holder in connection with such disposition, that such Prospectus
does not as of the time of such sale contain any untrue statement of a material fact relating to or provided by such Holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading.
            Section 5.  Registration Expenses.  The Company shall bear all fees and expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any Registration Statement is declared effective.  Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (x) with respect to filings required to be made with the National Association of Securities Dealers, Inc. and (y) of compliance with federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of the Special Counsel in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as Notice Holders of a 
 11






   majority of the Registrable Securities being sold pursuant to a Registration Statement may designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company), (iii) duplication expenses relating to copies of any Registration Statement or Prospectus delivered to any Holders hereunder, (iv)
fees and disbursements of counsel for the Company in connection with the Shelf Registration Statement, (v)reasonable fees and disbursements of the Trustee and its counsel and of the registrar and transfer agent for the Common Stock and (vi) any
Securities Act liability insurance obtained by the Company in its sole discretion.  In addition, the Company shall pay the internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees
performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing by the Company of the Registrable Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special experts, retained by the Company.  Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay selling expenses, including any
underwriting discount and commissions, and all registration expenses to the extent required by applicable law.
            Section 6. 
Indemnification and Contribution.  
            (a)     Indemnification by the Company.  The Company agrees
to indemnify and hold harmless each Notice Holder, each person, if any, who controls any Notice Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Notice Holder within
the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Holder furnished to the Company in writing by such Holder expressly for
use therein; provided that the indemnification contained in this paragraph shall not inure to the benefit of any Holder (or to the benefit of any person controlling such Holder or any affiliate of such Holder) on account of any such losses,
claims, damages or liabilities caused by any untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus provided in each case the Company has performed its obligations under Section 3(f) hereof if
either (A) (x) such Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale by such Holder to the person asserting the claim from which such losses, claims, damages or liabilities
arise and (y) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (B) (x) such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or
supplemented, with or prior to the delivery of written confirmation of the sale of a Registrable Security to the person asserting the claim from which such losses, claims, damages or liabilities arise.
           (b)     Indemnification by Holders.  Each Holder agrees severally and not jointly to indemnify and hold harmless the Company and its
directors, its officers and each person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) or any other Holder, to the same extent as the foregoing indemnity from the
Company to such Holder, but only with reference to information relating to such Holder furnished to the Company in
  12






   writing by such Holder expressly for use in such Registration Statement or Prospectus or amendment or supplement thereto.  In no event shall the liability of any Holder
hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such indemnification obligation.
            (c)     Conduct of Indemnification Proceedings.  In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought
(the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding.  In any such proceeding, any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between
them.  It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.  Such firm shall be designated in writing by, in the case of parties
indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be
convertible as of the date on which such designation is made) of the Registrable Securities covered by the Registration Statement held by Holders that are indemnified parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant
to Section 6(b), the Company.  The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement.  Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.  No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter
of such proceeding.
           (d)     Contribution.  To the extent that the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the other hand 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 
  13






   clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement pursuant to the Purchase Agreement (before deducting expenses) of the Registrable Securities to which such losses, claims, damages or liabilities relate.  The relative benefits received by any Holder shall be
deemed to be equal to the value of receiving Registrable Securities that are registered under the Securities Act.  The relative fault of the Holders on the one hand and the Company on the other hand 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 Holders or by the Company, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective number of
Registrable Securities they have sold pursuant to a Registration Statement, and not joint.
           The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding
paragraph.  The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding this Section 6, no indemnifying party that is a selling 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 it and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has
otherwise been required to pay by reason of such 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.
            (e)     The remedies
provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity, hereunder, under the Purchase Agreement or otherwise.
            (f)     The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder, any person controlling any Holder or any affiliate of any Holder or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) the sale of any Registrable Securities by any Holder.
           Section 7.  Information
Requirements.  The Company covenants that, if at any time before the end of the Effectiveness Period the Company is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Holder and take such further
reasonable action as any Holder may reasonably request in writing (including, without limitation, making such reasonable representations as any such 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 Rule 144 and Rule 144A under the Securities Act and customarily taken in connection with sales pursuant to such
exemptions.  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 filing requirements, unless such a statement has been included in the Company’s most
recent report filed pursuant to Section 13 or Section 15(d) of Exchange Act.  Notwithstanding the foregoing, nothing in this 
  14






   Section 7 shall be deemed to require the Company to register any of its securities (other than the Common Stock) under any section of the Exchange Act.
            Section 8.  Miscellaneous.  
           
(a)     No Conflicting Agreements.  The Company is not, as of the date hereof, a party to, nor shall it, on or after the date of this Agreement, enter into, any agreement with respect to its securities that
conflicts with the rights granted to the Holders in this Agreement.  The Company represents and warrants that the rights granted to the Holders hereunder do not in any way conflict with the rights granted to the holders of the Company’s
securities under any other agreements.
            (b)     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, 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. 
Notwithstanding the foregoing two sentences, this Agreement may be amended by written agreement signed by the Company and the Initial Purchasers, 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 8(b), 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.
           (c)     Notices.  All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by courier guaranteeing overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon
confirmation, if made by telecopier, (iii) one (1) Business Day after being deposited with such courier, if made by overnight courier or (iv) on the date indicated on the notice of receipt, if made by first-class mail, to the parties as
follows:

	   
 	                      (i)     if to a Holder, at the most
current address given by such Holder to the Company in a Notice and Questionnaire or any amendment thereto;
 

  15







	   
 	  (ii)
 	  if to the Company, to:
 
	   
 	   
 	   
 
	  
 	   
 	  NPS Pharmaceuticals, Inc.
 
	   
 	   
 	  420 Chipeta Way
 
	   
 	   
 	  Salt Lake City, Utah 84108
 
	   
 	   
 	  Attention:  Corporate Secretary
 
	   
 	   
 	  Telecopy No.:  (801) 583-4961
 
	   
 	   
 	   
 
	   
 	   
 	  and
 
	   
 	   
 	   
 
	  
 	   
 	  Foley & Lardner
 
	   
 	   
 	  3000 K Street, N.W., Suite 500
 
	   
 	   
 	  Washington, D.C.  20007-5101
 
	   
 	   
 	  Attention:  Thomas E. Hartman
 
	   
 	   
 	  Telecopy No.: (202) 672-5399
 
	   
 	   
 	   
 
	   
 	  (iii)
 	  if to the Initial Purchasers, to:
 
	   
 	   
 	   
 
	  
 	   
 	  Morgan Stanley & Co. Incorporated
 
	   
 	   
 	  1585 Broadway
 
	   
 	   
 	  New York, New York 10036
 
	   
 	   
 	  Attention: Global Capital Markets
 
	   
 	   
 	  Telecopy No.: (212) 761-0538
 

  or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
            (d)     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 Purchasers 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.
           (e)     Successors and Assigns.  Any person who
purchases any Registrable Securities from the Initial Purchasers shall be deemed, for purposes of this Agreement, to be an assignee of the Initial Purchasers.  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 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.
            (f)     Counterparts.  This Agreement may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be original and all of which taken together shall constitute one and the same agreement.
  16






             (g)     Headings.  The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
            (h)     Governing Law.  THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 
           
(i)     Severability.  If any term provision, covenant or restriction of this Agreement is held 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 thereby, and the parties hereto shall use their best 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 being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.
           (j)     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.
            (k)     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 4, 5 or 6 hereof and the obligations to make payments of and provide for the Liquidated Damages Amount under Section 2(e) hereof to the
extent such amount accrues prior to the end of the Effectiveness Period, each of which shall remain in effect in accordance with its terms.
  17






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

	   
 	  NPS PHARMACEUTICALS, INC.
 
	  
 	   
 
	   
 	  /s/ HUNTER JACKSON
 
	   
 	 
 
	   
 	  Hunter Jackson, Ph.D.
 C.E.O., President and Chairman of the Board
 

 

	  Confirmed and accepted as of
 the date first above written:
 
	   
 
	  MORGAN STANLEY & CO. INCORPORATED
 GOLDMAN, SACHS & CO.
 
	   
 
	  Acting severally on behalf of themselves and the several Initial 
 Purchasers named in Schedule I to the Purchase Agreement
 

 

	 By:
 	 MORGAN STANLEY & CO. INCORPORATED
 	  
 
	  
 	  
 	  
 
	  
 	 /s/ DAVID SCHWARZBACH
 	  
 
	  
 	 
 	  
 
	  
 	 David Schwarzbach
 Vice President