Exhibit
10.2


 


Execution Copy


 


REGISTRATION
RIGHTS AGREEMENT


 


June 7, 2004


 


SG
COWEN & CO., LLC

NEEDHAM & COMPANY, INC.

WELLS FARGO SECURITIES, LLC

WR HAMBRECHT + CO, LLC

As representatives of the Initial Purchasers


c/o SG Cowen & Co.,
LLC


1221 Avenue of the
Americas


New York, New York 10020


 


Dear Ladies and
Gentlemen:


 


EPIX Medical, Inc., a
Delaware corporation (the “Company”), proposes to issue and sell to you (the
“Initial Purchasers”), upon the terms set forth in a purchase agreement dated
June 7, 2004 (the “Purchase Agreement”), $100,000,000 principal amount of
its 3% Convertible Senior Notes due 2024 (the “Securities”).  As an inducement to you to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, for the benefit of the holders
(including the Initial Purchasers) of the Securities, as follows:


 


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


 


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


 


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


 


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


 


“Additional Interest
Payment Date” means each of June 15 and December 15.


 


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


 


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


 


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


 


“Commission” means the
Securities and Exchange Commission.


 


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


 


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


 


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


 


“Deferral Period” has the
meaning set forth in Section 4(h) 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
Notes and Underlying Common Stock have ceased to be Registrable Securities; provided,
however, that in no event shall the Effectiveness Period extend beyond
June 7, 2006.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Notes” means the 3%
Convertible Senior Notes due 2024 of the Company to be purchased pursuant to
the Purchase Agreement.


 


“Notice and
Questionnaire” means a written notice delivered to the Company containing
substantially all of the information called for by the Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering Circular of the
Company dated June 7, 2004 relating to the Notes, as such notice may be
amended by the Company upon the advice of nationally recognized counsel
experienced in such matters, to the extent reasonably necessary to ensure
compliance with applicable law.


 


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


 


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


 


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


 


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


 


“Registrable Securities”
means the Notes until such Notes have been converted into the Underlying Common
Stock and, at all times subsequent to any such conversion, the Underlying
Common Stock and any securities into or for which such Underlying Common Stock
has been converted or exchanged, and any security


 


2

















 


issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security, the earliest of (i) its effective registration under
the Securities Act and resale in accordance with the Registration Statement
covering it, (ii) expiration of the holding period that would be applicable
thereto for non-affiliates of the Company, under Rule 144(k) under the
Securities Act, (iii) its sale to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the Securities Act,
(iv) the date on which it ceases to be outstanding or (v) June 7, 2006.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Special Counsel” means
Hale and Dorr LLP or one such other successor counsel as shall be specified by
the Holders of a majority of the Registrable Securities, the reasonable fees
and expenses of which will be paid by the Company pursuant to Section 6
hereof.  For purposes of determining the
holders of a majority of the Registrable Securities in this definition, Holders
of Notes shall be deemed to be the Holders of the number of shares of
Underlying Common Stock into which such Notes are or would be convertible as of
the date the consent is requested.


 


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


 


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


 


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


 


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


 


2.                                       Registered
Offer.


 


(a)                                  The
Company shall prepare and file or cause to be prepared and filed with the
Commission as soon as practicable after the Closing Date but in no event later
than ninety (90) days of the Closing Date (such 90th day, the
“Filing Deadline Date”), a Registration Statement for an offering to be made on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
“Shelf Registration Statement”) registering the resale from time to time by
Holders thereof of all of the Registrable Securities (the “Initial Shelf
Registration Statement”).  The Initial
Shelf Registration Statement shall be on Form S-3 or, if unavailable, another
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in accordance with the methods of distribution
reasonably requested by the Holders and set forth in the Initial Shelf
Registration Statement.  The Company
shall use its reasonable 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 two hundred ten (210) days after the Closing Date, and to keep the Initial
Shelf Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act until the expiration of the


 


3

















 


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 and the Plan of Distribution set forth in the
Prospectus.  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 including, if reasonably necessary, by amending the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all of the securities that as of the date of such
filing are Registrable Securities (a “Subsequent Shelf Registration
Statement”).  If a Subsequent Shelf
Registration Statement is filed, the Company shall use its reasonable best
efforts to cause the Subsequent Shelf Registration Statement to become effective
as promptly as is practicable after such filing and to keep such Subsequent
Shelf Registration Statement continuously effective until the end of the
Effectiveness Period.


 


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


 


(d)                                 Each
Holder agrees that if such Holder wishes to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus, it will do
so only in accordance with this Section 2(d) and Section 4(h).  Each Holder who elects to sell Registrable
Securities pursuant to a Shelf Registration Statement agrees to complete and
deliver a Notice and Questionnaire to the Company and that it will be bound by
the terms and conditions of the Notice and Questionnaire and this
Agreement.  From and after the date the
Initial Shelf Registration Statement is declared effective, the Company shall,
as promptly as reasonably practicable after the date a Notice and Questionnaire
is delivered pursuant to Section 8(c) hereof and any information
reasonably requested by the Company in addition to the Notice and Questionnaire
has been received, and in any event upon the later of (x) thirty (30) Business
Days after such date or (y) thirty (30) Business Days after the expiration of
any Deferral Period in effect when the Notice and Questionnaire is delivered or
put into effect within ten (10) Business Days of such delivery date:


 


(i)                                     if
required by applicable law, file with the SEC a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Notice Holder is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Notice Holder to deliver such Prospectus to purchasers of its Registrable
Securities in accordance with applicable law and the Plan of Distribution set
forth in the Prospectus 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 (as
such date may be extended as set forth in this Section 2 below, the
“Amendment Effectiveness Deadline Date”) that is sixty (60) days after the date
such post-effective amendment is filed;


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


(d)                                 any
post-effective amendment to a Shelf Registration Statement filed pursuant to
Section 2(d)(i) has not been declared effective under the Securities Act
on or prior to the Amendment Effectiveness Deadline Date.


 


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


 


	
  Type of

  Event by

  Clause

  	
   

  	
  Beginning Date

  	
   

  	
  Ending Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Filing Deadline Date

  	
   

  	
  the date the Initial
  Shelf Registration Statement is filed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Effectiveness Deadline
  Date

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

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

  	
   

  	
  the earlier of
  June 7, 2006 and the termination of the Deferral Period that caused the
  limit on the aggregate duration of Deferral Periods to be exceeded

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  the Amendment
  Effectiveness Deadline Date

  	
   

  	
  the earlier of
  June 7, 2006 and the applicable post-effective amendment to a Shelf
  Registration Statement becomes effective under the Securities Act

  



 


Commencing on (and
including) any date that an Event has begun and ending on (but excluding) the
next date on which there are no Events that have occurred and are continuing
(an “Additional Interest Accrual Period”),


 


5

















 


the Company shall
pay, as additional interest (“Additional Interest”) and not as a penalty, to
Record Holders of Registrable Securities an amount (the “Additional Interest
Amount”) accruing, for each day in the Additional Interest Accrual Period, (i)
in respect of any Note at a rate per year equal to 0.25% of the outstanding
principal amount thereof for the first 90 days after the occurrence of the
Event and 0.50% of the outstanding principal amount thereof after the first 90
days; and (ii) in respect of each share of outstanding Underlying Common Stock
that is a Registrable Security at a rate per annum equal to 0.25% of the
then-applicable Conversion Price for the first 90 days after the occurrence of
the Event and 0.50% of the then-applicable Conversion Price after the first 90
days, as the case may be; provided that, subject to DTC requirements for
book-entry procedures and so long as separate CUSIP numbers would not be
required for any Registrable Securities, such Additional Interest Amount shall
be paid only to the Holders (as set forth in the succeeding paragraph) that
have delivered Notices and Questionnaires to the Company and only with respect
to such Holder’s Registrable Securities. 
In calculating the Additional Interest Amount on any date on which no
Notes are outstanding, the Conversion Price and the Additional Interest Amount
payable with respect to shares of Underlying Common Stock that are Registrable
Securities shall be calculated as if the Notes were still outstanding.  Notwithstanding the foregoing, no Additional
Interest Amount shall accrue as to any Registrable Security from and after the
earlier of (x) the date such security is no longer a Registrable Security and
(y) expiration of the Effectiveness Period. 
The rate of accrual of the Additional Interest Amount with respect to
any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.


 


The Additional Interest
Amount shall accrue from the first day of the applicable Additional Interest
Accrual Period, and shall be payable on each Additional Interest Payment Date
during the Additional Interest Accrual Period (and, without duplication, on the
Additional Interest Payment Date next succeeding the end of the Additional
Interest Accrual Period if the Additional Interest Accrual Period does not end
on an Additional Interest Payment Date) to the Record Holders of the
Registrable Securities entitled thereto; provided that any Additional Interest
Amount accrued with respect to any Note or portion thereof redeemed by the
Company on a redemption date or converted into Underlying Common Stock on a
conversion date prior to the Additional Interest Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Note or portion
thereof for redemption or conversion on the applicable redemption date or
conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion); provided further, that, subject to
DTC requirements for book-entry procedures and so long as separate CUSIP
numbers would not be required for any Registrable Securities, such Additional
Interest Amount shall be paid only to the Holders entitled thereto that have
delivered Notices and Questionnaires to the Company, by check mailed to the
address set forth in the Notice and Questionnaire delivered by such Holder.  The Trustee shall be entitled, on behalf of
registered holders of Notes or Underlying Common Stock, to seek any available
remedy for the enforcement of this Agreement, including for the payment of such
Additional Interest Amount.  Notwithstanding
the foregoing, the parties agree that the sole damages payable for a violation
of the terms of this Agreement with respect to which an Additional Interest
Amount is expressly provided shall be such Additional Interest Amount.  Nothing shall preclude any Holder from
pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.


 


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


 


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


 


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


 


(a)                                  Prepare
and file with the Commission a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the Holders thereof in accordance with
the reasonably requested method or methods of distribution thereof, and use its
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as


 


6

















 


provided herein; provided
that before filing any Registration Statement or Prospectus or any amendments
or supplements thereto with the Commission, the Company shall furnish to the
Initial 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; provided, further, that the documents required to be
filed pursuant to Section 2(d) shall be furnished instead to the Initial
Purchasers and the Special Counsel not later than one (1) Business Day prior to
the filing thereof.  The Company shall
use its reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as the Initial Purchasers and the Special
Counsel may reasonably propose.


 


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


 


(c)                                  As
promptly as reasonably 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 Commission and, with respect to
a Registration Statement or any post-effective amendment, when the same has
been declared effective, (ii) of any request, following the effectiveness of
the Initial Shelf Registration Statement under the Securities Act, by the
Commission or any other federal or state governmental authority for amendments
or supplements to any Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (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
Commission, which notice may, at the discretion of the Company (or as required
pursuant to Section 4(h)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 4(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 as promptly as practicable, and provide
prompt notice to each Notice Holder and the Initial Purchasers of the withdrawal
of any such order.


 


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


 


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


 


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


 


7

















 


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


 


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


 


(i)                                     in
the case of clause (B) above, subject to the next sentence, as promptly as
reasonably 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 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
as promptly as is practicable under the particular circumstances.  The Company shall be entitled to exercise
its right under this Section 4(h) to suspend the availability of the Shelf
Registration Statement or any Prospectus for a reasonable period of time, and
any such period during which the availability of the Registration Statement and
any Prospectus is suspended (the “Deferral Period”) shall, without incurring
any obligation to pay Additional Interest pursuant to Section 3, not
exceed 30 days in any three (3) month period (or 60 days in any three (3) month
period in the event of a Material Corporate Development pursuant to which the
Company has delivered a second notice as permitted below); provided that in the
case of a Material Corporate Development 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 Additional Interest pursuant to Section 3, deliver to Notice Holders a
second notice to the effect set forth above, which shall have the effect of
extending the permitted duration of the Deferral Period by up to an additional
30 days, or such shorter period of time as is specified in such second notice;


 


8

















 


provided further that the
aggregate duration of any Deferral Periods shall not exceed 90 days in any
twelve (12) month period.


 


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


 


(j)                                     Cooperate
with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold or to be sold pursuant to
a Registration Statement, which certificates shall not bear any restrictive
legends (unless required by applicable law), and cause such Registrable
Securities to be issued in such denominations as are permitted by the Indenture
and registered in such names as such Notice Holder may request in writing at
least three (3) Business Days prior to any sale of such Registrable Securities.


 


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


 


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


 


(m)                               Upon
(i) the filing of the Initial Shelf Registration Statement and (ii) the
effectiveness of the Initial Shelf Registration Statement, as promptly as is
reasonably practicable, announce the same, in each case by release to Business
Wire.


 


(n)                                 In
connection with any Shelf Registration Statement, enter into such customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all such other action, if any, as Holders of a majority of the
Registrable Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of the Registrable
Securities pursuant to such Shelf Registration Statement; provided, that the
Company shall not be required to enter into an underwriting agreement on more
than one occasion during the Effectiveness Period.


 


(o)                                 In
connection with any Shelf Registration Statement, but subject to reasonable
confidentiality restrictions as may be requested by the Company (i) make
reasonably available for inspection by a representative of, and Special Counsel
acting for, Holders of a majority of the Registrable Securities being sold and
any underwriter participating in any disposition of the Registrable Securities
pursuant to such Shelf Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries and (ii) use its reasonable best efforts to have its officers,
directors, employees, accountants and counsel supply all relevant information
reasonably requested by such representative, Special Counsel or any such
underwriter in connection with such Shelf Registration Statement, in each case,
as is customary for similar “due diligence” investigations.


 


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


 


9

















 


above, Holders of Notes
shall be deemed to be the Holders of the number of shares of Underlying Common
Stock into which such Notes are or would be convertible as of the relevant
date.


 


5.                                       Holder’s
Obligations.  Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder shall be entitled to
sell any of such Registrable Securities pursuant to a Registration Statement or
to receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a 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.


 


6.                                       Registration
Expenses.  The Company will bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and the Company will reimburse the Initial
Purchasers and the Holders for the reasonable fees and disbursements of the
Special Counsel, as and when incurred; provided, however, that the Company
shall in no event pay the reasonable fees and disbursements of more than one
firm of counsel for the Initial Purchasers and the Holders.  In no event shall the Company reimburse the
Holders for any underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of any Registrable Securities.


 


7.                                       Indemnification.


 


(a)                                  Indemnification
of Holders.  The Company shall
indemnify and hold harmless each Holder (including the Initial Purchasers) and
each person, if any, who controls such Holder within the meaning of the
Securities Act (collectively referred to for the purposes of this
Section 7 as a Holder) against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation,
any loss, claim, damage, liability or action relating to purchases and sales of
Registrable Securities), to which that Holder may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Registration Statement or any Prospectus or in
any amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus, in the light of the circumstances under which they were made) not
misleading, and shall reimburse each Holder for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or
preparing to defend or defending against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the foregoing indemnification agreement
with respect to any preliminary prospectus shall not inure to the benefit of
any Holder from whom the person asserting any such loss, claim, damage or
liability purchased Registrable Securities, if (i) a copy of the preliminary
prospectus (as then amended or supplemented) was required by law to be
delivered to such person at or prior to the written confirmation of the sale or
Registrable Securities to such person, (ii) a copy of the final prospectus (as
then amended or supplemented) was not sent or given to such person by or on
behalf of such Holder and (iii) the final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability, and further provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary prospectus or Registration Statement or any such amendment or
supplement in reliance upon and in conformity with any information included
therein in reliance upon or in conformity with written information furnished to
the Company by or on behalf of any Holder specifically for use therein (the
“Holders’ Information”) or as a result of any matter constituting a breach of
the covenants of such Holder under Section 4(h)(ii).


 


(b)                                 Indemnification
of Company, Directors and Officers. 
Each Holder, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors, its officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act (collectively referred to for the purposes of
this Section 7 as the Company), against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in a Prospectus or Registration


 


10

















 


Statement or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any Holders’
Information or resulted from a breach of the covenants of such Holder under
Section 4(h)(ii), and shall reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
preparing to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided however, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to
such Registration Statement.


 


(c)                                  Actions;
Notification.  Promptly after
receipt by an indemnified party under this Section 7 of notice of any
claim or the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the claim or
the commencement of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may
have under this Section 7 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7.  If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. 
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 7 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that any indemnified party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional
to those available to the indemnifying party and in the reasonable judgment of
such counsel it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the defense of
such action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying party
in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time for all such indemnified parties, which
firm shall be designated in writing by the Holders of a majority in aggregate
principal amount of the Registrable Securities, if the indemnified parties
under this Section 7 consist of any Holder or any of its respective
officers, employees or controlling persons, or by the Company, if the indemnified
parties under this Section 7 consist of the Company or any of its
directors, officers, employees or controlling persons.  Each indemnified party, as a condition of
the indemnity agreements contained in Sections 7(a) and 7(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim.  Subject to
the provisions of Section 7(d) below, no indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.


 


(d)                                 Settlement
without Consent if Failure to Reimburse. 
If at any time an indemnified party shall have requested in good faith
that an indemnifying party reimburse the indemnified party for reasonable fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by this Section 7 effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the request for reimbursement,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and


 


11

















 


(iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.


 


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


 


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


 


8.                                       Rules
144 and 144A.  The Company shall use
its reasonable best efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the
written request of any Holder, make publicly available other information so
long as necessary to permit sales of such Holder’s securities pursuant to Rules
144 and 144A.  The Company covenants that
it will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including, without
limitation, the requirements of Rule 144A(d)(4)).  Upon the written request of any Holder, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
requirements.  Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the
Company to register any of its securities pursuant to the Exchange Act.


 


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


 


12

















 


10.                                 Miscellaneous.


 


(a)                                  Amendments
and Waivers.  The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the then outstanding Underlying Common
Stock constituting Registrable Securities (with Holders of Notes deemed to be
the Holders, for purposes of this Section 10(a), of the number of
outstanding shares of Underlying Common Stock into which such Notes are or
would be convertible as of the date on which such consent is requested).  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of at least a majority
of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not
be amended, modified or supplemented except in accordance with the provisions
of the immediately preceding sentence, and provided further that no
modification may change the provisions relating to the payment of Additional
Interest without the consent of each Holder of Registrable Securities.  Notwithstanding the foregoing sentence, this
Agreement may be amended by written agreement signed by the Company and the
Initial 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 10(a).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


(f)                                    Governing
Law.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


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


 


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


 


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


 


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


 


(k)                                  Approval
of Holders.  Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than the Initial 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.


 


(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.


 


14

















 


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


 


[Signature Page Follows]


 


15

















 


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


 


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  EPIX MEDICAL,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peyton J.
  Marshall

  
	
   

  	
   

  	
  Name:  Peyton J. Marshall

  
	
   

  	
   

  	
  Title:    CFO

  



 


Accepted as of

the date first above written:


 


SG
COWEN & CO., LLC

NEEDHAM & COMPANY, INC.

WELLS FARGO SECURITIES, LLC

WR HAMBRECHT + CO. LLC

As representatives of the Initial Purchasers


 


	
  By:

  	
  SG COWEN & CO., LLC

  
	
   

  
	
   

  
	
  /s/ John Mosler

  	
   

  
	
  Name:  John Mosler

  
	
  Title:    MD

  
			



 


 


Registration Rights Agreement Signature Page