Exhibit
10.1


 


REGISTRATION RIGHTS AGREEMENT


 


THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into
as of December 9, 2003, by and among Genzyme Corporation, a Massachusetts
corporation (the “Company”), and UBS Securities LLC and the other
Initial Purchasers named in the Purchase Agreement referred to below
(collectively, the “Initial Purchasers”) pursuant to that certain
Purchase Agreement, dated December 4, 2003 (the “Purchase Agreement”),
among 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
and the Initial Purchasers agree (i) for the benefit of the Initial Purchasers,
(ii) for the benefit of the beneficial owners (including the Initial Purchaser)
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”) and (iii) for the benefit of the Company, as
follows:


 


Section 1.  Definitions.  Capitalized terms used herein without
definition shall have the 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.


 


“Applicable
Conversion Price” means, as of any date of determination, $1,000 principal
amount at maturity of Notes divided by the Conversion Rate then in effect as of
the date of determination or, if no Notes are then outstanding, the Conversion
Rate that would be in effect were Notes then outstanding.


 


“Business
Day” means each day on which the New York Stock Exchange is open for
trading.


 


“Common
Stock” means the shares of common stock, designated as Genzyme General
Stock, $0.01 par value per share, of the Company and any other shares of
capital stock as may constitute “Common Stock” for purposes of the
Indenture, including the Underlying Common Stock.


 


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


 


“Damages
Accrual Period” has the meaning set forth in Section 2(e) hereof.


 


“Damages
Payment Date” means each interest payment date under the Indenture in the
case of Notes, and each June 1 and December 1 in the case of the
Underlying Common Stock.


 

















 


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


 


“Effectiveness
Period” means a period that terminates when there are no Registrable
Securities outstanding.


 


“Event”
has the meaning set forth in Section 2(e) hereof.


 


“Event Date”
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.


 


“Form S-1”
means Form S-1 under the Securities Act.


 


“Form S-3”
means Form S-3 under the Securities Act.


 


“Holder”
has the meaning set forth in the preamble hereto.


 


“Indenture”
means the Indenture, dated as of December 9, 2003, between the Company and
the Trustee, pursuant to which the Notes are being issued.


 


“Initial
Purchasers” has the meaning set forth in the preamble hereto.


 


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


 


“Issue Date”
means the first date of original issuance of the Notes.


 


“liquidated
damages” has the meaning set forth in Section 2(e).


 


“Liquidated
Damages Amount” has the meaning set forth in Section 2(e) hereof.


 


“Material
Event” has the meaning set forth in Section 3(i) hereof.


 


“Notes”
means the 1.25% Convertible Senior Notes due 2023 of the Company to be
purchased pursuant to the Purchase Agreement.


 


“Notice and
Questionnaire” means a written notice and questionnaire 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 dated December 4, 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, so long as all of such
Holder’s Registrable Securities that have been registered for resale pursuant
to a Notice and Questionnaire have not been sold in accordance with a Shelf
Registration Statement.


 


2

















 


“Prospectus”
means the prospectus included in any Shelf 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 415 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
deemed to be incorporated by reference in such Prospectus.


 


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


 


“Record
Holder” means (i) with respect to any Damages Payment Date relating to any
Note as to which any Liquidated Damages Amount has accrued, the Notice Holder
that was a holder of record of such Note at the close of business on the record
date with respect to the interest payment date under the Indenture on which
such Damages Payment Date shall occur and (ii) with respect to any Damages
Payment Date relating to the Underlying Common Stock as to which any Liquidated
Damages Amount has accrued, a Notice Holder that was the registered holder of
such Underlying Common Stock at the close of business on (A) May 15 with
respect to a Damages Payment Date that is on June 1 or (B)
November 15 with respect to a Damages Payment Date that is on
December 1.


 


“Registrable
Securities” means the Notes until such Notes have been converted into the
Underlying Common Stock and, at all times the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted,
and any security issued with respect thereto upon any stock dividend, split or
similar event (each of the foregoing, a “Covered Security”) until, in
the case of any such security, the earliest of (w) the date on which such
security has been effectively registered under the Securities Act and disposed
of in accordance with the Registration Statement relating thereto; (x) the date such security has been
publicly sold pursuant to Rule 144 or any successor provision thereto; (y) the
date on which such security may
be resold without restriction pursuant to Rule 144(k) or any successor
provision thereto; or (z) the date that is two (2) years after the later of the
Issue Date or the latest “additional time of purchase” (as defined in the
Purchase Agreement).


 


“Registration
Expenses” has the meaning set forth in Section 5 hereof.


 


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


 


“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.


 


3

















 


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


 


“Shelf
Registration Statement” means the Initial Shelf Registration Statement and
any Subsequent Shelf Registration Statement.


 


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


 


“Subsequent
Shelf Registration Statement Effectiveness Deadline Date” has the meaning
set forth in Section 2(d) hereof.


 


“Suspension
Notice” has the meaning set forth in Section 3(i) hereof.


 


“Suspension
Period” has the meaning set forth in Section 3(i) 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, by the date (the “Filing
Deadline Date”) that is one hundred and twenty (120) 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 registering the
resale from time to time by Holders thereof of all of the Registrable
Securities (or, if registration of Registrable Securities not held by Notice
Holders is not permitted by the rules and regulations of the SEC, then
registering all Registrable Securities held by Notice Holders) (the “Initial
Shelf Registration Statement”).  The
Initial Shelf Registration Statement shall be on Form S-1 or 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
indicated in their Notice and Questionnaires and set forth in the Initial Shelf
Registration Statement (provided, however, that in no event will
such methods of distribution take the form of an underwritten offering of
Registrable Securities without the Company’s prior consent, which the Company
may withhold at its sole discretion).  The
Company shall use its reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act by the
date (the “Effectiveness Deadline Date”) that is two hundred and ten
(210) 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 (except to the extent permitted under Section 3(i)).  At the time the Initial Shelf Registration
Statement becomes effective under the Securities Act, each Holder that became a
Notice Holder on or before the fifth (5th) Business Day prior to the date of
such 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 Notice Holder to deliver such Prospectus to purchasers of


 


4

















 


Registrable Securities in accordance with the Securities Act, assuming
the accuracy of the information in such Notice Holder’s Notice and
Questionnaire.


 


(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 (except to the extent permitted under Section 3(i)),
the Company shall use its reasonable 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 (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and
regulations of the SEC, then registering all Registrable Securities held by
Notice Holders as of such date) (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, but in no event later than the Subsequent Shelf Registration
Statement Effectiveness Deadline, and to keep such Shelf Registration Statement
(or Subsequent Shelf Registration Statement) continuously effective until the
end of the Effectiveness Period (except to the extent permitted under
Section 3(i)).


 


(c)                                  The
Company shall supplement and amend any 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.


 


(d)                                 (i)  Each Holder of Registrable Securities 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(i).  Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a duly completed and executed Notice and Questionnaire to the
Company prior to any attempted or actual distribution of Registrable Securities
under a Shelf Registration Statement. 
With respect to any Holder who delivers a duly completed and executed
Notice and Questionnaire after the fifth (5th) Business Day before the date the
Initial Shelf Registration Statement becomes effective under the Securities
Act, the Company shall, as promptly as reasonably practicable after the date a
Notice and Questionnaire is delivered,


 


(A) if
required by applicable law, file with the SEC a supplement to the related
Prospectus or a post-effective amendment to the Shelf Registration Statement or
a Subsequent Shelf Registration Statement and any necessary supplement or
amendment to any document incorporated therein by reference to the applicable
Shelf Registration Statement and file any other required document with the SEC
so that the Holder delivering such Notice and Questionnaire is named as a
selling securityholder in a 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 the Securities
Act; provided, however, that (i) any supplement to a Prospectus
filed pursuant to this Section 2(d)(i)(A) shall, subject to
Section 2(d)(i)(E), be filed within five (5) Business Days after receipt
of the related Notice and Questionnaire (provided, that with respect to any
Notice and Questionnaire received by the Company after the date that is thirty
(30) days after the date the Initial Shelf Registration


 


5

















 


Statement becomes effective under the Securities Act, the Company shall
not be required to file more than one (1) such supplement during any twenty
(20) day period) and (ii) if a post-effective amendment or a Subsequent Shelf
Registration Statement is required by the rules and regulations of the SEC in
order to permit resales by Notice Holders who were not named as selling
securityholders in the Initial Shelf Registration Statement as of the time it
became effective under the Securities Act, the Company shall not be required to
file more than one (1) post-effective amendment or Subsequent Shelf Registration
Statement for such purpose in any three (3) month period;


 


(B) if the
Company shall file a post-effective amendment to the Shelf Registration
Statement or file a Subsequent Shelf Registration Statement, it shall use its
reasonable efforts to cause such post-effective amendment or Subsequent Shelf
Registration Statement, as the case may be, to become effective under the
Securities Act as promptly as is practicable, but in any event by the date (the
“Amendment Effectiveness Deadline Date” in the case of a post-effective
amendment or the “Subsequent Shelf Registration Statement Effectiveness
Deadline Date” in the case of a Subsequent Shelf Registration Statement)
that is forty five (45) days after the date such post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, is required by
this Section 2(d) to be filed;


 


(C) the
Company shall provide such Holder such number of copies of any documents filed
pursuant to Section 2(d)(i)(A) as such Holder may reasonably request;


 


(D) the Company
shall notify each Holder named as a selling securityholder in the applicable
Prospectus as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment or Subsequent Shelf Registration
Statement filed pursuant to Section 2(d)(i)(A);


 


(E) if a
Notice and Questionnaire is delivered during a Suspension Period, or a
Suspension Period is put into effect within five (5) Business Days after such
delivery date, the Company shall so inform the Holder delivering such Notice
and Questionnaire and shall, subject to the limitations set forth above in this
Section 2(d), take the actions set forth in clauses (A), (B) and (C) above
within five (5) Business Days after expiration of the Suspension Period in
accordance with Section 3(i); and


 


(F) if under
the Securities Act, the Company has more than one option as to the type or
manner of making any such filing, the Company shall make the required filing or
filings in the manner or of a type that the Company reasonably expects to
result in the earliest availability of a Prospectus for effecting resales of
Registrable Securities.


 


(ii)  Notwithstanding anything contained herein to
the contrary, the Company shall be under no obligation to name any Holder that
is not a Notice Holder as a selling securityholder in any Shelf Registration
Statement or related Prospectus; provided, however, that any
Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(d) (whether or not such Holder was named as a selling securityholder
in the Initial Shelf Registration Statement as of the time it became effective
under the Securities Act) shall be named as a selling securityholder in a Shelf
Registration Statement or related Prospectus in accordance with the
requirements of this Section 2(d).


 


6

















 


(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 (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) either a supplement to a
prospectus, a post-effective amendment or a Subsequent Shelf Registration
Statement is required to be filed and fails to be filed within the prescribed
period set forth in Section 2(d) (the applicable date being an “Additional
Filing Deadline Date”) or in the case of a post-effective amendment or a
Subsequent Shelf Registration Statement, such post-effective amendment or
Subsequent Registration Statement does not become effective under the
Securities Act by the Amendment Effectiveness Deadline Date or the Subsequent
Shelf Registration Statement Effectiveness Deadline Date, as the case may be,
(iv) the Initial Shelf Registration Statement or any Subsequent Registration
Statement is filed and declared effective under the Securities Act but shall
thereafter cease to be effective (without being succeeded by a new registration
statement declared effective under the Securities Act the same day) or usable
under the Securities Act for the offer and sale of Registrable Securities for a
period of time (including any Suspension Period) which shall exceed forty five
(45) days in the aggregate in any three (3) month period or ninety (90) days in
the aggregate in any twelve (12) month period or (v) the Initial Registration
Statement and the related Prospectus, at the time the Initial Registration
Statement shall be declared effective under the Securities Act, fail to name
each Holder that became a Notice Holder on or before the fifth (5th) Business
Day prior to the date the Initial Registration Statement became effective under
the Securities Act as a selling securityholder in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with the Securities Act (each of the events of a type described
in any of the foregoing clauses (i) through (v) are individually referred to
herein as an “Event,” and the Filing Deadline Date in the case of clause
(i), the Effectiveness Deadline Date in the case of clause (ii), the Additional
Filing Deadline Date, the Amendment Effectiveness Deadline Date or the
Subsequent Shelf Registration Statement Effectiveness Deadline Date, as the
case may be, in the case of clause (iii), the date on which the duration of the
ineffectiveness or unusability of the Shelf Registration Statement in any
period exceeds the number of days permitted by clause (iv) hereof in the case
of clause (iv), and the date the Initial Registration Statement shall become
effective under the Securities Act in the case of clause (v), being referred to
herein as an “Event Date”). 
Events shall be deemed to continue until the following dates with
respect to the respective types of Events: (A) the date the Initial Shelf
Registration Statement is filed in the case of an Event of the type described
in clause (i); (B) the date the Initial Shelf Registration Statement becomes
effective under the Securities Act in the case of an Event of the type
described in clause (ii); (C) the date a prospectus supplement or a
post-effective amendment to the Initial Shelf Registration Statement or
Subsequent Shelf Registration Statement, whichever is required, is filed or
becomes effective under the Securities Act, as the case may be, in the case of
an Event of the type described in clause (iii); (D) the date the Initial Shelf
Registration Statement or the Subsequent Shelf Registration Statement, as the
case may be, becomes effective or usable again, or the date another Subsequent
Shelf Registration Statement is filed pursuant to Section 2(b) and becomes
effective under the Securities Act, in the case of an Event of the type
described in clause (iv); or (E) the date a prospectus supplement to the
Initial Shelf Registration Statement is filed with the SEC, or a post-effective
amendment to the Initial Shelf Registration Statement is declared effective
under the Securities Act, which prospectus supplement or post-effective
amendment


 


7

















 


names as selling securityholders, in such a manner as to permit them to
deliver the related Prospectus to purchasers of Registrable Securities in
accordance with the Securities Act, all Holders entitled as herein provided to
be so named, in the case of an Event of the type described in clause (v); provided,
however, that all Events will be deemed to be suspended during any
Suspension Period, unless the duration of such Suspension Period exceeds forty
five (45) days in any three (3) month period or an aggregate of ninety (90)
days in any twelve (12) month period).


 


Accordingly,
commencing on (and including) any Event Date 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 agrees to pay, as liquidated
damages (“liquidated damages”) and not as a penalty, an amount (the “Liquidated
Damages Amount”) at the rate described below, payable periodically on each
Damages Payment Date to Record Holders, to the extent of, for each such Damages
Payment Date, accrued and unpaid Liquidated Damages Amount to (but excluding)
such Damages Payment Date (or, if the Damages Accrual Period shall have ended
prior to such Damages Payment Date, the date of the end of the Damages Accrual
Period); provided that any Liquidated Damages Amount accrued with
respect to any Note or portion thereof called for redemption 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).  The Liquidated Damages Amount
shall accrue at a rate per annum equal to one quarter of one percent (0.25%)
for the first ninety (90) day period from the Event Date and thereafter at a
rate per annum equal to one half of one percent (0.50%), of (i) the aggregate
principal amount of the Notes held by such Record Holders or, without
duplication, (ii) in the case of Notes that have been converted into Underlying
Common Stock, the Applicable Conversion Price of such shares of Underlying
Common Stock, as the case may be. 
Notwithstanding the foregoing, no Liquidated Damages Amounts shall
accrue as to any Covered Security from and after the earlier of (x) the date
such Covered 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. 
Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant to
this Section, the accrual of Liquidated Damages Amounts shall cease (without in
any way limiting the effect of any subsequent Event requiring the payment of
Liquidated Damages Amount by the Company).


 


The Trustee
shall be entitled, on behalf of Holders of Notes, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any
Liquidated Damages Amount.


 


All of the
Company’s obligations set forth in this Section 2(e) 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 9(m)).


 


8

















 


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 an Event, including, without limitation,
the failure of a Shelf Registration Statement to be filed, declared effective
under the Securities Act, amended or replaced to include the names of all
Notice Holders or available for effecting resales of Registrable Securities in
accordance with the provisions hereof. 
Subject to any rights that may arise pursuant to Section 6, the
parties hereto also agree that the liquidated damages provided for hereunder
shall constitute the sole and exclusive remedy for an Event.


 


Section 3.  Registration Procedures.  In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:


 


(a)                                  Prepare
and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements on Form S-1 or Form S-3 or any other appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the method or methods of distribution
described in the related Notice and Questionnaires, and use its reasonable
efforts to cause each such Shelf Registration Statement to become effective and
remain effective as provided herein; provided that before filing any
Shelf Registration Statement or Prospectus or any amendments or supplements
thereto with the SEC, the Company shall furnish to the Initial Purchasers and
counsel for the Initial Purchasers copies of all such documents proposed to be
filed and use its reasonable efforts to reflect in each such document when so
filed with the SEC such comments as the Initial Purchasers or such counsel
reasonably shall propose within two (2) Business Days of the delivery of such
copies to the Initial Purchasers and such counsel.


 


(b)                                 Prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement or Subsequent Shelf Registration Statement continuously
effective until the expiration of the Effectiveness Period (except to the
extent permitted under Section 3(i)); 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 efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.


 


(c)                                  As
promptly as practicable, give notice to the Notice Holders (and all other
Holders known, without any duty of investigation, by the Company) and the
Initial Purchasers (i) when any Shelf Registration Statement or post-effective
amendment to a Shelf Registration Statement has become effective under the
Securities Act, (ii) of any request, following the effectiveness of a Shelf
Registration Statement under the Securities Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to such
Shelf Registration Statement or the 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 Shelf
Registration Statement, (iv) of the receipt by the Company or its legal counsel
of any notification with respect to the suspension of the qualification or
exemption from qualification of


 


9

















 


any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) after the
effective date of any Shelf Registration Statement filed pursuant to this
Agreement 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 Shelf Registration Statement or a Subsequent Shelf Registration
Statement will be filed with the SEC, which notice may, at the discretion of
the Company (or as required pursuant to Section 3(i)), state that it
constitutes a Suspension Notice, in which event the provisions of
Section 3(i) shall apply.


 


(d)                                 Subject
to the terms hereof, use its reasonable efforts to (A) prevent the issuance of,
and, if issued, to obtain the withdrawal of, any order suspending the
effectiveness of any Shelf Registration Statement and (B) obtain 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
prompt notice to each Notice Holder and the Initial Purchasers of the
withdrawal or lifting of any such order or suspension.


 


(e)                                  If
requested by the Initial Purchasers or any Notice Holder, as promptly as
practicable incorporate in a Prospectus supplement or a post-effective
amendment to a Shelf Registration Statement such information as the Initial
Purchasers or such Notice Holder shall determine to be required to be included
therein by applicable law and make any required filings of such Prospectus
supplement or such post-effective amendment; provided that the Company
shall not be required to take any actions under this Section 3(e) unless
the Company receives the written opinion of counsel for the party making such
request that such action is required by applicable law.


 


(f)                                    As
promptly as practicable furnish upon request to each Notice Holder and the
Initial Purchasers, without charge, one (1) conformed copy of any Shelf
Registration Statement and any amendment thereto, including financial
statements but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in writing
to the Company by such Notice Holder or the Initial Purchasers).


 


(g)                                 During
the Effectiveness Period, deliver to each Notice Holder in connection with any
sale of Registrable Securities pursuant to a Shelf Registration Statement,
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby consents (except
during such periods that a Suspension 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.


 


(h)                                 Prior
to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its reasonable efforts to register or qualify or
cooperate with the Notice Holders 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


 


10

















 


requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to a Shelf Registration Statement, use its reasonable 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 Shelf Registration Statement and the related Prospectus; provided
that the Company will not be required to (i) qualify generally to do business
in any jurisdiction where it is not then so qualified 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.


 


(i)                                     Upon
(A) the issuance by the SEC of a stop order suspending the effectiveness of any
Shelf Registration Statement or the initiation of proceedings with respect to
any 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 as
a result of which any Shelf 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 necessary in order 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 (a “Material
Event”) that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of any Shelf Registration Statement and
the related Prospectus, (i) in the case of clause (B) or (C) 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 Shelf
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 Shelf Registration Statement
and Prospectus so that such Shelf 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 necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that the Company may rely on
information provided by each Notice Holder with respect to such Notice Holder),
and, in the case of a post-effective amendment to a Shelf Registration
Statement, subject to the next sentence, use its reasonable efforts to cause it
to be declared effective under the Securities Act as promptly as is
practicable, and (ii) give notice to the Notice Holders that the availability
of the Shelf Registration Statement is suspended (a “Suspension Notice”),
and, upon receipt of any Suspension Notice, each Notice Holder agrees not to
sell any Registrable Securities pursuant to such Shelf 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.  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, the Shelf Registration Statement does
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein


 


11

















 


or necessary to make the statements therein not misleading and the
Prospectus does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, 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 period during which the availability of
the Shelf Registration Statement and any Prospectus may be suspended (the “Suspension
Period”) without the Company incurring any obligation to pay liquidated
damages pursuant to Section 2(e) shall not exceed forty five (45) days in
any three (3) month period or an aggregate of ninety (90) days in any twelve
(12) month period.


 


(j)                                     Make
available for inspection during normal business hours by representatives for
the Notice Holders and any underwriters participating in any disposition
pursuant to any Shelf Registration Statement and any broker-dealers, attorneys
and accountants retained by such Notice Holders or any such underwriters, 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
available for inspection during normal business hours all relevant information
reasonably requested by such representatives for the Notice Holders, or any
such underwriters, broker-dealers, attorneys or accountants in connection with
such disposition, in each case as is customary for similar “due diligence”
examinations; provided, however, that such persons shall first
agree in writing with the Company that any information that is confidential at
the time of delivery of such 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 governmental
or 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 Shelf Registration Statement or the use of
any Prospectus referred to in this Agreement) or necessary to defend or
prosecute a claim brought against or by any such persons (e.g., to establish a “due
diligence” defense), (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 or is not otherwise under a duty of trust to the
Company; 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 one
counsel for such Notice Holders and such other parties.


 


(k)                                  Comply
with all applicable rules and regulations of the SEC to the extent, and so long
as, they are applicable to any Shelf Registration Statement; and make generally
available to its securityholders earnings 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) no later than forty five (45) days after the end of any twelve (12) month period
(or seventy five (75) days after the end of any twelve (12) month period if
such period is a fiscal year) commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a Shelf
Registration Statement, which statements shall cover such twelve (12) month
periods.


 


12

















 


(l)                                     Cooperate
with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to a Shelf
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 two (2) Business Days prior to any sale
of such Registrable Securities.


 


(m)                               Provide
a CUSIP number for all Registrable Securities covered by a Shelf Registration
Statement not later than the effective date of the Initial Shelf Registration
Statement and provide the Trustee and the transfer agent for the Common Stock
with certificates for the Registrable Securities that are in a form eligible
for deposit with, or to be held by the Trustee as custodian for, The Depository
Trust Company in book-entry-only form.


 


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


 


(o)                                 Cause
the Indenture to be qualified under the TIA not later than the effective date
of the Initial Shelf Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner.


 


(p)                                 Use
its reasonable efforts to file with the NASDAQ a Notification of Listing of
Additional Shares, if required in order to list the Underlying Common Stock on
The Nasdaq National Market.


 


(q)                                 Use
its reasonable efforts to take all other steps necessary to effect the
registration of the Registrable Securities as contemplated hereby.


 


Section 4.  Holder’s Obligations.  Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Shelf
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


 


13

















 


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 in order to make
the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading. 
Each Holder agrees to keep confidential the receipt of any Suspension
Notice and the contents thereof, except as required pursuant to applicable law.


 


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 Section 2 and 3 of this Agreement whether or not any of the Shelf
Registration Statements are filed or declared effective under the Securities
Act. Such fees and expenses (“Registration Expenses”) shall include,
without limitation, (i) all registration and filing fees and expenses
(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 securities laws and state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of
counsel for the Holders in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Shelf Registration Statement may designate), (ii) all printing expenses
(including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
printing Prospectuses), (iii) all duplication and mailing expenses relating to
copies of any Shelf Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) all fees and disbursements of counsel for the Company,
(v) all fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock and (vi) 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.  Except as provided above, each Holder shall
pay all brokerage fees and commissions, all transfer taxes, the fees and
expenses of any advisors the Holder engages and all similar fees and costs
relating to such Holder’s disposition of Registrable Securities.


 


Section 6.  Indemnification; Contribution.


 


(a)                                  The
Company agrees to indemnify, defend and hold harmless each Initial Purchaser,
each Holder, each person, if any, who controls any Initial Purchaser or Holder
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (a “Controlling Person”) and the respective
officers, directors, partners, employees, representatives and agents of any
Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified
Party”), from and against any loss, damage, expense, liability, claim or
any actions in respect thereof (including the reasonable cost of investigation)
which such Indemnified Party may incur or become subject to under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, damage,
expense, liability, claim or action arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in any Shelf
Registration Statement or Prospectus, including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus, or arises out of or is based


 


14

















 


upon any omission or alleged omission to state a material fact required
to be stated in any Shelf Registration Statement or in any amendment or
supplement thereto or necessary to make the statements therein not misleading,
or arises out of or is based upon any omission or alleged omission to state a
material fact necessary in order to make the statements made in any Prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, in
the light of the circumstances under which they were made, not misleading, and
the Company shall reimburse, as incurred, the Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, damage, expense, liability, claim or action in
respect thereof; provided, however, that the Company shall not be
required to provide any indemnify pursuant to this Section 6(a) in any
such case insofar as any such loss, damage, expense, liability, claim or action
arises out of or is based upon any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in, or omitted from,
and in conformity with information furnished in writing by or on behalf of an
Initial Purchaser or a Holder to the Company expressly for use in, any Shelf
Registration Statement or any Prospectus, including information provided by
such Holder in a Notice and Questionnaire; provided  further that,
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to a Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall
not inure to the benefit of any Holder from whom the person asserting any such
losses, damages, expenses, liabilities, claims or actions purchased the Registrable
Securities concerned, to the extent that a prospectus relating to such
Registrable Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss, damage,
expense, liability, claim or action of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Registrable Securities to such person, a copy
of the final prospectus if the Company had previously furnished copies thereof
to such Holder; provided  further, however, that (i) this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party and (ii) this indemnity agreement will
not apply to any loss, damage, expense, liability or claim arising from an
offer or sale, occurring during a Suspension Period, of Registrable Securities
by a Notice Holder to whom the Company theretofore provided a Suspension Notice
in accordance with Section 3(i).


 


(b)                                 Each
Holder, severally and not jointly, agrees to indemnify, defend and hold
harmless the Company, its directors, officers, employees, representatives,
agents and any person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a “Company Indemnified Party”) from and against any loss, damage,
expense, liability, claim or any actions in respect thereof (including the
reasonable cost of investigation) which such Company Indemnified Party may incur
or become subject to under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, damage, expense, liability, claim or action (i) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in information furnished in writing by or on behalf of
such Holder to the Company expressly for use in any Shelf Registration
Statement or Prospectus, including any document incorporated by reference
therein, or in any amendment or supplement thereto or in any preliminary
prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact required to be stated in any Shelf Registration
Statement or in any amendment or supplement thereto or necessary to make the
statements therein not misleading, or


 


15

















 


arises out of or is based upon any omission or alleged omission to
state a material fact necessary in order to make the statements in any
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, in the light of the circumstances under which they were made, not
misleading, in connection with such information, (ii) arises out of or is based
upon a sale of Registrable Securities during a Suspension Period by a Notice
Holder to whom the Company theretofore provided a Suspension Notice in
accordance with Section 3(i) or (iii) arises out of or is based upon a
sale of Registrable Securities by a Notice Holder without delivery of the most
recent applicable Prospectus provided to such Holder by the Company pursuant to
Section 3(g) or Section 2(d)(i)(C); and, subject to the limitation
set forth immediately preceding this clause, each Holder shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by
the Company or any such controlling person in connection with investigating or
defending any loss, damage, expense, liability, claim or action in respect
thereof.  This indemnity agreement will
be in addition to any liability which such Holder may otherwise have to the
Company or any of its controlling persons. 
In no event shall the liability of any selling Holder of Registrable
Securities 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 Shelf Registration Statement giving rise to such
indemnification obligation.


 


(c)                                  If
any action, suit or proceeding (each, a “Proceeding”) is brought against
any person in respect of which indemnity may be sought pursuant to either
subsection (a) or (b) of this Section 6, such person (the “Indemnified
Party”) shall promptly notify the person against whom such indemnity may be
sought (the “Indemnifying Party”) in writing of the institution of such
Proceeding and the Indemnifying Party shall assume the defense of such
Proceeding; provided, however, that the omission to notify such
Indemnifying Party shall not relieve such Indemnifying Party from any liability
which it may have to such Indemnified Party or otherwise, except to the extent
the Indemnifying Party is materially prejudiced thereby.  Such Indemnified Party shall have the right
to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless the employment
of such counsel shall have been authorized in writing by such Indemnifying
Party in connection with the defense of such Proceeding or such Indemnifying
Party shall not have employed counsel to have charge of the defense of such
Proceeding within thirty (30) days of the receipt of notice thereof or such
Indemnified Party shall have reasonably concluded upon the written advice of
counsel that there may be one or more defenses available to it that are
different from, additional to or in conflict with those available to such
Indemnifying Party (in which case such Indemnifying Party shall not have the
right to direct that portion of the defense of such Proceeding on behalf of the
Indemnified Party, but such Indemnifying Party may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Indemnifying Party), in any of which events
such reasonable fees and expenses shall be borne by such Indemnifying Party and
paid as incurred (it being understood, however, that such Indemnifying Party
shall not be liable for the expenses of more than one separate counsel in any
one Proceeding or series of related Proceedings together with reasonably
necessary local counsel representing the Indemnified Parties who are parties to
such action).  An Indemnifying Party
shall not be liable for any settlement of such Proceeding effected without the
written consent of such Indemnifying Party, but if settled with the written consent
of such Indemnifying Party, such Indemnifying Party agrees to indemnify and
hold harmless an Indemnified Party from and against any loss or liability by
reason of such settlement.  No
Indemnifying Party shall, without


 


16

















 


the prior written consent of any Indemnified Party, effect any
settlement of any pending or threatened Proceeding in respect of which such
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 and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
Indemnified Party.


 


(d)                                 If
the indemnification provided for in this Section 6 is unavailable to an
Indemnified Party under subsections (a) and (b) of this Section 6 in
respect of any losses, damages, expenses, liabilities, claims or actions
referred to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, damages,
expenses, liabilities, claims or actions (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders or the Initial Purchasers on the other hand from the
offering of the Registrable Securities 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 of the
Holders or the Initial Purchasers on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses,
liabilities, claims or actions, as well as any other relevant equitable
considerations.  The relative fault of
the Company on the one hand and of the Holders or the Initial Purchasers on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Holders or the Initial Purchasers and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.  The amount paid or payable by
a party as a result of the losses, damages, expenses, liabilities, claims and
actions referred to above shall be deemed to include any reasonable legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any Proceeding.


 


(e)                                  The
Company, the Holders and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in subsection (d)
above.  Notwithstanding the provisions
of this Section 6, 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 it were offered to the public exceeds the amount of any damages which
it 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.  The Holders’
respective obligations to contribute pursuant to this Section 6 are several
in proportion to the respective amount of Registrable Securities they have sold
pursuant to a Shelf Registration Statement, and not joint.  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 any indemnified party at law or in equity.


 


(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


 


17

















 


investigation made by or on behalf of any Holder or the Initial
Purchasers or any person controlling any Holder or Initial Purchaser, or the
Company, or the Company’s officers or directors or any person controlling the
Company and (iii) the sale of any Registrable Security by any Holder.


 


Section 7.  Information Requirements.  The Company covenants that, if at any time
before the end of the Effectiveness Period it is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further action as any Holder of
Registrable Securities may reasonably request in writing (including, without
limitation, making such 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 limitations of the exemptions provided by Rule 144,  Rule 144A and Regulation S under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions.


 


Section 8.  Underwritten Registrations. 
Notwithstanding anything herein to the contrary, no Registrable
Securities covered by a Shelf Registration Statement may be sold in an
underwritten offering under the Shelf Registration Statement without the prior
written consent of the Company.  No
person may participate in any underwritten registration hereunder unless such
person (i) agrees to sell such person’s Registrable Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting
arrangements.


 


Section 9.  Miscellaneous.


 


(a)                                  Remedies.  The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under this Agreement may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, any Initial Purchaser or Holder may obtain such relief as may be
required to specifically enforce the Company’s obligations under this
Agreement.  The Company further agrees
to waive the defense in any action for specific performance that a remedy at
law would be adequate.  Notwithstanding
the foregoing two sentences, this Section 9(a) shall not apply to the
subject matter referred to in and contemplated by Section 2(e).


 


(b)                                 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 of Registrable Securities in this Agreement.  The Company warrants that the rights granted
to the Holders of Registrable Securities hereunder will not be asserted in a
manner that in any way conflicts with the rights granted to the holders of the
Company’s securities under any other agreements.  After the date hereof, the Company shall not grant to any of its
security holders (other than the Holders in such capacity) the right to include
any of its securities in the Shelf Registration Statement filed pursuant to
this Agreement.


 


18

















 


(c)                                  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 in aggregate principal amount of such Registrable Securities (provided
that holders of Common Stock issued upon conversion of the Notes shall not be
deemed holders of Common Stock, but shall be deemed to be holders of the
aggregate principal amount of Notes from which such Common Stock was
converted); provided  that, no consent is necessary from any of
the Holders in the event that this Agreement is amended, modified or
supplemented for the purpose of curing any ambiguity, defect or inconsistency
that does not adversely affect the rights of any Holders.  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 of Registrable Securities whose
securities are being sold pursuant to a Shelf Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Shelf
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. 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 9(c), 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.


 


(d)                                 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:


 


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


 


	
  (y)

  	
   

  	
  if to the
  Company, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Genzyme Corporation

  
	
   

  	
   

  	
  Genzyme Center

  
	
   

  	
   

  	
  500 Kendall Street

  
	
   

  	
   

  	
  Cambridge, MA 02142

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
  Telecopy No.: (617) 252-7553

  
	
   

  	
   

  	
   

  
	
  (z)

  	
   

  	
  if to the Initial Purchasers, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o UBS Securities LLC

  
	
   

  	
   

  	
  299 Park Avenue

  



 


19

















 


	
   

  	
   

  	
  New York, New York 10171

  
	
   

  	
   

  	
  Attention: Syndicate Department

  
	
   

  	
   

  	
  Telecopy No.: (212) 713-1205

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to (for informational purposes
  only):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS Securities LLC

  
	
   

  	
   

  	
  299 Park Avenue

  
	
   

  	
   

  	
  New York, New York 10171

  
	
   

  	
   

  	
  Attention: Legal Department

  
	
   

  	
   

  	
  Telecopy No.: (212) 821-4042

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS Securities LLC

  
	
   

  	
   

  	
  677 Washington Boulevard

  
	
   

  	
   

  	
  Stamford, Connecticut 06901

  
	
   

  	
   

  	
  Attention: Syndicate Department

  
	
   

  	
   

  	
  Telecopy No.: (203) 719-0683

  



 


or to such other address as such person may have furnished to the other
persons identified in this Section 9(d) in writing in accordance herewith.


 


(e)                                  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 of Registrable Securities if the Initial
Purchasers or 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.


 


(f)                                    Third Party
Beneficiaries.  The Holders
shall be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder and shall be bound by the terms hereof.


 


(g)                                 Successors and Assigns.  Any person who purchases any Registrable
Securities from any Initial Purchaser or from any Holder shall be deemed, for
purposes of this Agreement, to be an assignee of such Initial Purchaser or such
Holder, as the case may be.  This
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of each of the parties hereto and shall inure to the
benefit of and be binding upon each Holder of any Registrable Securities.


 


(h)                                 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.


 


20

















 


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


 


(j)                                     Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.


 


(k)                                  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 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 being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.


 


(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.


 


(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 4, 5 or 6 hereof and the obligations to make
payments of and provide for liquidated damages under Section 2(e) 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.


 


(n)                                 Submission to Jurisdiction.  Except as set forth below, no Proceeding may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company hereby
consents to the jurisdiction of such courts and personal service with respect
thereto.  The Company hereby consents to
personal jurisdiction, service and venue in any court in which any Proceeding
arising out of or in any way relating to this Agreement is brought by any third
party against any Initial Purchaser. 
THE COMPANY, THE INITIAL PURCHASERS AND THE HOLDERS HEREBY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT.  The Company, the Initial Purchasers and the
Holders, agree that a final judgment in any such Proceeding brought in any such
court shall be conclusive and binding upon the Company and may be


 


21

















 


enforced in any other courts in the jurisdiction of which the Company
is or may be subject, by suit upon such judgment.


 


[The
Remainder of This Page Left Blank; Signature Page Follows]


 


22

















 


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


 


 


	
   

  	
  GENZYME CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael Wyzga

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Wyzga

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial and

  Accounting Officer;

  Executive Vice President,

  Finance

  
	
   

  
	
  Confirmed and accepted as of the date first
  above

  written on behalf of itself and the other several

  Initial Purchasers:

  
					



 


 


	
  UBS SECURITIES LLC

  
	
   

  
	
   

  
	
  By:

  	
    /s/ Chris D. Hite

  	
   

  
	
   

  	
  Name:  /s/ Chris D. Hite

  
	
   

  	
  Title:  Managing Director

  
	
   

  
	
   

  
	
  By:

  	
    /s/ Mark Saad

  	
   

  
	
   

  	
  Name:  Mark Saad

  
	
   

  	
  Title:  Executive Director

  
					



 


23