exv10w1






Exhibit 10.1




CONTINGENT VALUE RIGHTS AGREEMENT




by and between



SANOFI-AVENTIS



and



[TRUSTEE]



Dated as of [ • ], 2011




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	SECTION 1.1 Definitions
	 	 	1	 
	SECTION 1.2 Compliance and Opinions
	 	 	15	 
	SECTION 1.3 Form of Documents Delivered to Trustee
	 	 	15	 
	SECTION 1.4 Acts of Holders
	 	 	16	 
	SECTION 1.5 Notices, etc., to Trustee and Company
	 	 	17	 
	SECTION 1.6 Notice to Holders; Waiver
	 	 	17	 
	SECTION 1.7 Conflict with Trust Indenture Act
	 	 	18	 
	SECTION 1.8 Effect of Headings and Table of Contents
	 	 	18	 
	SECTION 1.9 Benefits of Agreement
	 	 	18	 
	SECTION 1.10 Governing Law
	 	 	18	 
	SECTION 1.11 Legal Holidays
	 	 	19	 
	SECTION 1.12 Separability Clause
	 	 	19	 
	SECTION 1.13 No Recourse Against Others
	 	 	19	 
	SECTION 1.14 Counterparts
	 	 	19	 
	SECTION 1.15 Acceptance of Trust
	 	 	19	 
	SECTION 1.16 Termination
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 2 SECURITY FORMS
	 	 	20	 
	SECTION 2.1 Forms Generally
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 3 THE SECURITIES
	 	 	20	 
	SECTION 3.1 Title and Payment Terms
	 	 	20	 
	SECTION 3.2 Registrable Form
	 	 	22	 
	SECTION 3.3 Execution, Authentication, Delivery and Dating
	 	 	22	 
	SECTION 3.4 Temporary Securities
	 	 	23	 
	SECTION 3.5 Registration, Registration of Transfer and Exchange
	 	 	23	 
	SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	24	 
	SECTION 3.7 Payments with Respect to CVR Certificates
	 	 	25	 
	SECTION 3.8 Persons Deemed Owners
	 	 	25	 
	SECTION 3.9 Cancellation
	 	 	25	 
	SECTION 3.10 CUSIP Numbers
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 4 THE TRUSTEE
	 	 	25	 
	SECTION 4.1 Certain Duties and Responsibilities
	 	 	25	 
	SECTION 4.2 Certain Rights of Trustee
	 	 	26	 
	SECTION 4.3 Notice of Breach
	 	 	27	 
	SECTION 4.4 Not Responsible for Recitals or Issuance of Securities
	 	 	28	 
	SECTION 4.5 May Hold Securities
	 	 	28	 
	SECTION 4.6 Money Held in Trust
	 	 	28	 






i









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 4.7 Compensation and Reimbursement
	 	 	28	 
	SECTION 4.8 Disqualification; Conflicting Interests
	 	 	28	 
	SECTION 4.9 Corporate Trustee Required; Eligibility
	 	 	29	 
	SECTION 4.10 Resignation and Removal; Appointment of Successor
	 	 	29	 
	SECTION 4.11 Acceptance of Appointment of Successor
	 	 	30	 
	SECTION 4.12 Merger, Conversion, Consolidation or Succession to Business

	 	 	31	 
	SECTION 4.13 Preferential Collection of Claims Against Company
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 5 HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE AND COMPANY
	 	 	31	 
	SECTION 5.1 Company to Furnish Trustee with Names and Addresses of Holders
	 	 	31	 
	SECTION 5.2 Preservation of Information; Communications to Holders
	 	 	32	 
	SECTION 5.3 Reports by Trustee
	 	 	32	 
	SECTION 5.4 Reports by Company
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 6 AMENDMENTS
	 	 	33	 
	SECTION 6.1 Amendments without Consent of Holders
	 	 	33	 
	SECTION 6.2 Amendments with Consent of Holders
	 	 	34	 
	SECTION 6.3 Execution of Amendments
	 	 	34	 
	SECTION 6.4 Effect of Amendments; Notice to Holders
	 	 	35	 
	SECTION 6.5 Conformity with Trust Indenture Act
	 	 	35	 
	SECTION 6.6 Reference in Securities to Amendments
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 7 COVENANTS
	 	 	35	 
	SECTION 7.1 Payment of Amounts, If Any, to Holders
	 	 	35	 
	SECTION 7.2 Maintenance of Office or Agency
	 	 	36	 
	SECTION 7.3 Money for Security Payments to Be Held in Trust
	 	 	36	 
	SECTION 7.4 Certain Purchases and Sales
	 	 	37	 
	SECTION 7.5 Books and Records
	 	 	37	 
	SECTION 7.6 Audits
	 	 	37	 
	SECTION 7.7 Listing of CVRs
	 	 	39	 
	SECTION 7.8 Restrictive Covenants
	 	 	39	 
	SECTION 7.9 Product Transfer
	 	 	39	 
	SECTION 7.10 Milestones
	 	 	40	 
	SECTION 7.11 Notice of Breach
	 	 	40	 
	SECTION 7.12 Non-Use of Name
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 8 REMEDIES OF THE TRUSTEE AND HOLDERS IN THE EVENT OF BREACH
	 	 	40	 
	SECTION 8.1 Breach Defined; Waiver of Breach
	 	 	40	 
	SECTION 8.2 Collection by the Trustee; the Trustee May Prove Payment Obligations
	 	 	41	 
	SECTION 8.3 Application of Proceeds
	 	 	43	 
	SECTION 8.4 Suits for Enforcement
	 	 	44	 
	SECTION 8.5 Restoration of Rights on Abandonment of Proceedings
	 	 	44	 
	SECTION 8.6 Limitations on Suits by Holders
	 	 	44	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 8.7 Unconditional Right of Holders to Institute Certain Suits
	 	 	44	 
	SECTION 8.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Breach
	 	 	45	 
	SECTION 8.9 Control by Holders
	 	 	45	 
	SECTION 8.10 Waiver of Past Breaches
	 	 	45	 
	SECTION 8.11 The Trustee to Give Notice of Breach, But May Withhold in Certain Circumstances
	 	 	46	 
	SECTION 8.12 Right of Court to Require Filing of Undertaking to Pay Costs
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	46	 
	SECTION 9.1 Company May Consolidate, etc., on Certain Terms
	 	 	46	 
	SECTION 9.2 Successor Person Substituted
	 	 	47	 
	SECTION 9.3 Opinion of Counsel to the Trustee
	 	 	48	 
	SECTION 9.4 Successors
	 	 	48	 
	 
	 	 	 	 
	ARTICLE 10 Redemption OF SECURITIES
	 	 	48	 
	SECTION 10.1 Notice to Trustee
	 	 	48	 
	SECTION 10.2 Notice of Redemption
	 	 	48	 
	SECTION 10.3 Effect of Notice of Redemption
	 	 	49	 
	SECTION 10.4 Deposit of Redemption Price
	 	 	49	 
	SECTION 10.5 Optional Redemption by the Company
	 	 	49	 





Annex A — Form of CVR Certificate





			
	Note:	 	This table of contents shall not, for any purpose, be
deemed to be a part of this CVR Agreement.









iii









 








     Reconciliation and tie between Trust Indenture Act of 1939 and Contingent Value Rights
Agreement, dated as of [ • ], 2011.



	 	 	 
	Trust Indenture Act Section	 	Agreement Section
	Section 310(a)(1)
	 	4.9
	(a)(2)
	 	4.9
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	4.9
	(b)
	 	4.8, 4.10
	Section 311(a)
	 	4.13
	(b)
	 	4.13
	Section 312(a)
	 	5.1, 5.2(a)
	(b)
	 	5.2(b)
	(c)
	 	5.2(c)
	Section 313(a)
	 	5.3(a)
	(b)
	 	5.3(a)
	(c)
	 	5.3(a)
	(d)
	 	5.3(b)
	Section 314(a)
	 	5.4
	(b)
	 	Not Applicable
	(c)(1)
	 	1.2(a)
	(c)(2)
	 	1.2(a)
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	1.2(b)
	Section 315(a)
	 	4.1(a), 4.1(b)
	(b)
	 	8.11
	(c)
	 	4.1(a)
	(d)
	 	4.1(c)
	(d)(1)
	 	4.1(a), 4.1(b)
	(d)(2)
	 	4.1(c)(ii)
	(d)(3)
	 	4.1(c)(iii)
	(e)
	 	8.12
	Section 316(a)(last sentence)
	 	1.1 (Definition of “Outstanding”)
	(a)(1)(A)
	 	8.9
	(a)(1)(B)
	 	8.10
	(a)(2)
	 	Not Applicable
	(b)
	 	8.7
	Section 317(a)(1)
	 	8.2
	(a)(2)
	 	8.2
	(b)
	 	7.3
	Section 318(a)
	 	1.7







			
	Note:	 	This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this CVR Agreement.





iv









 





     THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [•], 2011 (this “CVR Agreement”),
by and between Sanofi-Aventis, a French société anonyme, with share capital of [•] and
registered office at [•] (the “Company”), and [•], a national banking association, as
trustee (the “Trustee”), in favor of each person who from time to time holds one or more
Contingent Value Rights (the “Securities” or “CVRs” and, each individually, a
“Security” or a “CVR”) to receive cash payments in the amounts and subject to the
terms and conditions set forth herein.



W I T N E S S E T H:




     WHEREAS, this CVR Agreement is entered into pursuant to the Agreement and Plan of Merger,
dated as of February 16, 2011 (the “Merger Agreement”), by and among the Company, GC Merger
Corp., a Massachusetts corporation and wholly owned Subsidiary of the Company (“Merger
Sub”), and Genzyme Corporation, a Massachusetts corporation (“Genzyme”);



     WHEREAS, pursuant to the Merger Agreement, Merger Sub shall merge with and into Genzyme (the
“Merger”), with Genzyme being the surviving corporation in the Merger and becoming a wholly
owned Subsidiary of the Company;



     WHEREAS, the CVRs shall be issued in accordance with and pursuant to the terms of the Merger
Agreement; and



     WHEREAS, a registration statement on Form F-4 (No. 333-[•]) (the “Registration
Statement”) with respect to the CVRs has been prepared and filed by the Company with the
Commission (as defined below) and has become effective in accordance with the Securities Act of
1933, as amended (the “Securities Act”).



     NOW, THEREFORE, in consideration of the foregoing premises and the consummation of the
transactions contemplated by the Merger Agreement, it is covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:



ARTICLE 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION



     SECTION 1.1 Definitions. For all purposes of this CVR Agreement, except as otherwise
expressly provided or unless the context otherwise requires:




     (a) the terms defined in this Article 1 have the meanings assigned to them in this
Article, and include the plural as well as the singular;




     (b) all accounting terms used herein and not expressly defined herein shall, except as
otherwise noted, have the meanings assigned to such terms in accordance with applicable
Accounting Standards, where “Accounting Standards” means International Financial
Reporting Standards (“IFRS”) consistently applied;




     (c) all capitalized terms used in this CVR Agreement without definition shall have the
respective meanings ascribed to them in the Merger Agreement;



 









 






     (d) all other terms used herein which are defined in the Trust Indenture Act (as
defined herein), either directly or by reference therein, have the respective meanings
assigned to them therein; and




     (e) the words “herein,” “hereof” and “hereunder” and other
words of similar import refer to this CVR Agreement as a whole and not to any particular
Article, Section or other subdivision.



     “35-milligram Vial Equivalent” means a unit of production of Fabrazyme calculated as
follows:



     (a) each vial of thirty-five (35)-milligram dosage of Fabrazyme shall equal one (1)
35-milligram Vial Equivalent; and



     (b) each vial of five (5)-milligram dosage of Fabrazyme shall equal one-seventh (1/7) of a
35-milligram Vial Equivalent.



     “400 Unit Vial Equivalent” means a unit of production of Cerezyme calculated as
follows:



     (a) each vial of four hundred (400) Cerezyme Unit dosage of Cerezyme shall equal one (1) 400
Unit Vial Equivalent; and



     (b) each vial of two hundred (200) Cerezyme Unit dosage of Cerezyme shall equal one-half (1/2)
of a 400 Unit Vial Equivalent.



     “Act” shall have the meaning set forth in Section 1.4 of this CVR Agreement.



     “Acting Holders” means, at the time of determination, Holders of at least thirty
percent (30%) of the Outstanding CVRs.



     “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.



     “Approval Milestone” means receipt by the Company or one of its Affiliates, on or
before March 31, 2014, of the FDA Approval of alemtuzumab for treatment of multiple sclerosis.



     “Approval Milestone Payment” means one dollar ($1.00) per CVR.



     “Approval Milestone Payment Date” means, with respect to the Approval Milestone, the
date that is twenty (20) Business Days following the date of the achievement of such Milestone.



2









 





     “Board of Directors” means the board of directors of the Company or any other body
performing similar functions, or any duly authorized committee of that board.



     “Board Resolution” means a copy of a resolution certified by the Chairman of the Board
of Directors, the Chief Executive Officer or the Secretary to the Board of Directors, to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.



     “Breach” shall have the meaning set forth in Section 8.1 of this CVR Agreement.



     “Breach Interest Rate” means a per annum rate equal to the prime rate of interest
quoted by Bloomberg, or similar reputable data source, plus three percent (3%), calculated daily on
the basis of a three hundred sixty-five (365) day year or, if lower, the highest rate permitted
under applicable Law.



     “BSP” means Bayer Schering Pharma AG.



     “Business Day” means any day (other than a Saturday or a Sunday) on which banking
institutions in The City of New York, New York or Paris, France are not authorized or obligated by
Law or executive order to close and, if the CVRs are listed on a national securities exchange,
electronic trading network or other suitable trading platform, such exchange, electronic network or
other trading platform is open for trading.



     “Cerezyme” means any formulation or dosage of imiglucerase, an analogue of the human
enzyme ß-glucocerebrosidase, produced by recombinant DNA technology.



     “Cerezyme Unit” means the amount of imiglucerase enzyme that catalyzes the hydrolysis
of one (1) micromole of the synthetic substrate para-nitrophenyl-ß-D-glucopyranoside (pNP-Glc) per
minute at thirty-seven degrees Celsius (37°C) as measured in the validated enzymatic assay used in
imiglucerase manufacturing.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Combination Product” means any product that comprises a Product and a therapeutically
active component that is not a Product, either packaged together or in the same formulation, which
are sold as a single unit.



     “Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.



     “Common Stock” means the common stock, par value $0.01 per share, of Genzyme.



     “Company” means the Person named as the “Company” in the first paragraph of this CVR
Agreement, until a successor Person shall have become such pursuant to the applicable provisions of
this CVR Agreement, and thereafter “Company” shall mean such successor Person.



3









 





     “Company Group” means the Company and its Subsidiaries.



     “Company Request” or “Company Order” means a written request or order signed
in the name of the Company by the chairman of the Board of Directors, the Chief Executive Officer,
a president or any vice president, or any other person duly authorized to act on behalf of the
Company for such purpose or for any general purpose, and delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office at the date of
execution of this CVR Agreement is located at [•].



     “CVRs” shall have the meaning set forth in the Preamble of this CVR Agreement.



     “CVR Agreement” means this instrument as originally executed and as it may from time
to time be supplemented or amended pursuant to the applicable provisions hereof.



     “CVR Certificate” means a certificate representing any of the CVRs.



     “CVR Failure Date” means any date on which both of the following conditions are met:
(a) the volume weighted average price paid per Security for all Securities traded over the
forty-five (45) trading days prior to such date is less than fifty cents ($0.50); and (b) Product
Sales in the four (4) calendar quarters ended immediately prior to such date are less than one
billion dollars ($1,000,000,000) in the aggregate.



     “CVR Payment” means a Product Sales Milestone Payment, the Approval Milestone Payment
or the Production Milestone Payment, as applicable.



     “CVR Shortfall” shall have the meaning set forth in Section 7.6(b) of this CVR
Agreement.



     “Diligent Efforts” means, with respect to the Product, efforts of a Person to carry
out its obligations, and to cause its Affiliates and licensees to carry out their respective
obligations, using such efforts and employing such resources normally used by Persons in the
pharmaceutical business relating to the research, development or commercialization of a product,
that is of similar market potential at a similar stage in its development or product life, taking
into account issues of market exclusivity, product profile, including efficacy, safety,
tolerability and convenience, the competitiveness of alternate products in the marketplace or under
development, the availability of existing forms or dosages of alemtuzumab for other indications,
the launch or sales of a biosimilar product, the regulatory environment and the profitability of
the applicable product (including pricing and reimbursement status achieved) consistent with the
Company’s publicly reported financial statements (assuming the Company will not treat royalty
payments to BSP as an expense for purposes of this clause, or the achievement of Milestones in such
a manner, that would reduce the profitability of the Product), and other relevant factors,
including technical, commercial, legal, scientific and/or medical factors. Subject to the
foregoing, “Diligent Efforts” shall include, but shall not be limited to, the following: (a)
making expenditures in relation to the Product that are consistent with expenditures normally made
by Persons in the pharmaceutical business in connection with products of similar market potential
at similar stages in their development or product life; (b) implementing and maintaining
appropriate



4









 




Product and patient support services (including, but not limited to, risk identification and
minimization programs and reimbursement support services); (c) initiating and completing all
post-marketing approval commitments; (d) promptly seeking pricing approvals and/or minimally
restrictive payer coverage decisions in the Major Markets; (e) fulfilling obligations under any
co-promotion agreement or arrangement with BSP should BSP exercise its right to co-promote the
Product; (f) setting or seeking a commercial price for the Product that is consistent with the
profile of the Product, including seeking premium pricing based on the effectiveness of the
Product; (g) promoting the Product for all labeled multiple sclerosis indications; and (h)
otherwise fulfilling the obligations of the Company and its Affiliates under Existing Licenses,
including fulfilling obligations pursuant to the LAPA in order to maintain the rights to develop
and commercialize the Product granted thereunder.




     “EMA” means the European Medicines Agency, or any successor agency.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Exchange Act Documents” shall have the meaning set forth in Section 5.4 of this CVR
Agreement.



     “Existing Licenses” means those licenses and related agreements (for so long as they
are in effect) with respect to the Product granted by or to Genzyme or its Affiliates to or from
third parties (other than the Company or its Affiliates) as in effect immediately prior to the
consummation of the Merger.



     “Fabrazyme” means any formulation or dosage of agalsidase beta, an analogue of the
human enzyme alpha-galactosidase A or alpha-GAL, produced by recombinant DNA technology.



     “Failure Purchase” shall have the meaning set forth in Section 10.1 of this CVR
Agreement.



     “Failure Purchase Eligibility Date” means any CVR Failure Date that occurs on or after
the third anniversary of Product Launch.



     “Failure Purchase Date” shall have the meaning set forth in Section 10.1 of this CVR
Agreement.



     “Failure Purchase Notice” shall have the meaning set forth in Section 10.2 of this CVR
Agreement.



     “Failure Purchase Offer” shall have the meaning set forth in Section 10.1 of this CVR
Agreement.



     “Failure Purchase Price” shall have the meaning set forth in Section 10.5 of this CVR
Agreement.



     “FDA” means the United States Food and Drug Administration or any successor agency.



5









 





     “FDA Approval” means the issuance by the FDA of a biologics license or a supplement to
an existing biologics license for a product.



     “Finished Product” means either Fabrazyme or Cerezyme, as applicable, in unlabeled
vials ready for final packaging and labeling, with both the manufacture of the active
pharmaceutical ingredient and the filling into vials having occurred in facilities approved by
either the FDA or the EMA.



     “First Commercial Sale” means, with respect to any country, the first sale or other
commercial disposition for consideration of the Product labeled for treatment of multiple sclerosis
in such country after marketing approval (including pricing and reimbursement approval where
required) for the treatment of multiple sclerosis has been received in such country.



     “Genzyme” shall have the meaning set forth in the Recitals of this CVR Agreement.



     “Good Manufacturing Practices” means Good Manufacturing Practices pursuant to U.S.
Code: Title 21-Food and Drugs, Parts 210 and 211.



     “Governmental Entity” means any domestic (federal or state), or foreign court,
commission, governmental body, regulatory or administrative agency or other political subdivision
thereof.



     “Holder” means a Person in whose name a Security is registered in the Security
Register.



     “Indemnitee” shall have the meaning set forth in Section 4.7(c) of this CVR Agreement.



     “Independent Accountant” shall have the meaning set forth in Section 7.6(a) of this
CVR Agreement.



     “Initial CVR Securities” means the aggregate amount of Securities issued pursuant to
the terms of the Merger Agreement (including Securities issued pursuant to employee benefits plans
in connection with the Merger).



     “LAPA” means the License and Asset Purchase Agreement, dated as of March 30, 2009,
between Genzyme and BSP, as amended.



     “Law” means any foreign, federal, state, local or municipal laws, rules, judgments,
orders, regulations, statutes, ordinances, codes, decisions, injunctions, decrees, international
treaties and conventions or requirements of any Governmental Entity.



     “Major Market” means the United States of America, the United Kingdom, France,
Germany, Italy and Spain.



     “Major Market Product Sales” means, with respect to each Major Market, the aggregate
Product Sales in such Major Market that occur during the four (4)-calendar quarter period
commencing immediately after the calendar quarter in which the First Commercial Sale is made in
such Major Market.



6









 





     “Merger” shall have the meaning set forth in the Recitals of this CVR Agreement.



     “Merger Agreement” shall have the meaning set forth in the Recitals of this CVR
Agreement.



     “Merger Sub” shall have the meaning set forth in the Recitals of this CVR Agreement.



     “Milestone” means any of the Approval Milestone, the Product Sales Milestones and the
Production Milestone.



     “Officer’s Certificate” when used with respect to the Company means a certificate
signed by the Chief Executive Officer, a president or any vice president, the Chief Financial
Officer (with respect to the certificate issued in connection with a CVR Failure Date) or any other
person duly authorized to act on behalf of the Company for such purpose or for any general purpose.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the
Company.



     “Outstanding” when used with respect to Securities (“Outstanding Securities”)
means, as of the date of determination, all Securities theretofore authenticated and delivered
under this CVR Agreement, except: (a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation and (b) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this CVR Agreement, other than any
such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite Outstanding Securities have given any request,
demand, authorization, direction, consent, waiver or other action hereunder, Securities owned by
the Company or any Affiliate of the Company, whether held as treasury securities or otherwise,
shall be disregarded and deemed not to be Outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, consent, waiver or other action, only Securities that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded (but the Trustee need not confirm or
investigate the accuracy of mathematical calculations or other facts stated in such request,
demand, authorization, direction, consent, waiver or other action).



     “Party” shall mean the Trustee, the Company and/or Holder(s), as applicable.



     “Paying Agent” means any Person authorized by the Company to pay the amount determined
pursuant to Section 3.1, if any, on any Securities on behalf of the Company.



     “Payment Date” means a Product Sales Milestone Payment Date, the Approval Milestone
Payment Date, the Production Milestone Payment Date or any date as shall be required for any CVR
Shortfall payment pursuant to the review procedure set forth in Section 7.6 of this CVR Agreement.



7









 





     “Person” means any individual, corporation, partnership, joint venture, association,
jointstock company, trust, limited liability company, unincorporated organization or government or
any agency or political subdivision thereof.



     “Product” means any of: (a) the humanized antibody directed against CD52 known as
alemtuzumab; (b) any molecule which comprises alemtuzumab or a fragment, variant or derivative
thereof that retains the ability to bind human CD52; (c) any other CD52-binding molecule having a
structure and activity similar enough to the molecules described in clauses (a) or (b) of this
definition to be classified as a biosimilar (or follow-on biologic or subsequent entry biologic or
the like) thereof; and (d) any product containing any of the items described in clauses (a)-(c) of
this definition as an active ingredient, in each case regardless of formulation, delivery system,
or dosage form, provided that, notwithstanding the foregoing, any unit of Product, to the
extent sold for use in (i) oncology or (ii) Transplant Indications, in each of cases (i) and (ii)
under the Campath® or MabCampath® trademarks, shall not be deemed to be “Product” for the purposes
of this CVR Agreement.



     “Product Disposition Transaction” shall have the meaning set forth in Section 7.9 of
this CVR Agreement.



     “Product Launch” means the first day of the calendar quarter beginning one full
calendar quarter after the end of the calendar quarter in which a First Commercial Sale first
occurs in any Major Market.



     “Product Sales” means the sum of, without any duplication:



     (a) the aggregate gross amounts invoiced for the Product sold by the Company, its Affiliates
or licensees of the Company and its Affiliates to third parties (other than the Company, its
Affiliates or licensees of the Company and its Affiliates), including to distributors and
end-users, less the following items (i) through (v) below as applicable to such Product sales to
the extent actually taken or incurred with respect to such sales (the “Permitted
Deductions”) and all in accordance with standard allocation procedures, allowance methodologies
and accounting methods consistently applied, in accordance with IFRS (except as otherwise provided
below):



          (i) credits or allowances for returns, rejections or recalls (due to spoilage, damage,
expiration of useful life or otherwise), retroactive price reductions or billing corrections;




          (ii) separately itemized invoiced freight, postage, shipping and insurance, handling and other
transportation costs;




          (iii) sales, use, value added and other similar taxes (excluding income taxes), tariffs,
customs duties, surcharges and other governmental charges levied on the production, sale,
transportation, delivery or use of the Product that are incurred at time of sale or are directly
related to the sale;




          (iv) any quantity, cash or other trade discounts, rebates, returns, refunds, charge backs,
fees, credits or allowances (including amounts incurred in connection with government-mandated
rebate and discount programs, third party rebates and charge backs, and hospital buying group/group
purchasing organization administration fees and payor






8









 







organizations), distribution fees, sales commissions paid to third parties, retroactive price
reductions and billing corrections (collectively, “Discounts”), but not including Discounts
taken or incurred with respect to sales of the Product with other products or services to third
parties, including distributors and end-users such as hospitals and clinics, as part of bundling or
other forms of multi-product purchase agreements; and




          (v) deductions for bad debts (which adjustment shall be based on actual bad debts incurred and
written off as uncollectible by the Company in a quarter, net of any recoveries of previously
written off bad debts from current or prior quarters); plus




     (b) the aggregate net amount invoiced for services incident to or necessary for, to the extent
readily identifiable as arising from, the commercialization or market uptake of the Product
(excluding, for the avoidance of doubt, any product that would be excluded from the definition of
“Product” pursuant to the proviso to that definition) including, but not limited to, patient and
physician education services, patient monitoring services, biomarker testing and biomarker support
products or services, as well as any services associated with risk identification and risk
minimization useful or necessary to commercialize the Product and maintain Product licensure; plus



     (c) any supplemental net payments to the extent readily identifiable as arising from the
Product (excluding, for the avoidance of doubt, any product that would be excluded from the
definition of “Product” pursuant to the proviso to that definition) under “pay-for-performance” or
other risk-sharing arrangements with third-party payors (which, for the avoidance of doubt, shall
include governments and insurance companies).



     Sales or other commercial dispositions of a Product among the Company, its Affiliates and
licensees of the Company or its Affiliates shall be excluded from the computation of Product Sales,
except where such an Affiliate or licensee is an end-user of the Product. For the avoidance of
doubt, use of the Product for clinical testing in which the cost of the Product is not reimbursed
shall not make an Affiliate or licensee an end-user of the Product (but use of the Product for
clinical testing in which the cost of the Product is reimbursed by third-party payors (which, for
the avoidance of doubt, shall include governments and insurance companies) shall be included in
Product Sales).



     Notwithstanding the foregoing, if a Product is sold or otherwise commercially disposed of for
consideration other than cash or in a transaction that is not at arm’s-length between the buyer and
the seller, then the gross amount to be included in the calculation of Product Sales shall be the
amount that would have been invoiced had the transaction been conducted at arm’slength and for
cash. Such amount that would have been invoiced shall be determined, wherever possible, by
reference to the wholesale acquisition cost of such Product in arm’s-length transactions in the
relevant country. Notwithstanding the foregoing, the following will not be included in Product
Sales: (i) Product provided by Company or its Affiliate for administration to patients enrolled in
clinical trials or distributed through a not-for-profit foundation at no or nominal charge to
eligible patients in conjunction with a patient assistance program or (ii) commercially reasonable
quantities of Product Sales used as samples to promote additional Product Sales.



9









 





     Notwithstanding the foregoing, in the event that a Product is sold as a Combination Product (a
“Combination Sale”), the Product Sales amount for the Product sold in such a Combination
Sale shall be determined as follows:




	 	(i)	 	Except as provided below, the Product Sales amount for a Combination Sale in a
particular country shall be calculated by multiplying the gross amount invoiced for the
Combination Sale (“Gross Combination Sale Amount”) (less all Permitted
Deductions) by the fraction A/(A+B), where A is the wholesale acquisition cost charged
by the Company, its Affiliates or licensees of the Company or its Affiliates in such
country for such Product if such Product is sold separately in such country by the
Company, its Affiliates or licensees of the Company or its Affiliates, and B is the
wholesale acquisition cost charged by the Company, its Affiliates or licensees of the
Company or its Affiliates in such country for the other product(s) or active
ingredients/components included in the Combination Product if such other product(s) or
active ingredients/components are sold separately in such country by the Company, its
Affiliates or licensees of the Company or its Affiliates.
	 
	 	(ii)	 	In the event that the Company, its Affiliates or licensees of the Company and
its Affiliates sell the Product included in a Combination Sale as a separate product in
a country, but do not separately sell all of the other product(s) or active
ingredients/components, as the case may be, included in such Combination Product in
such country, the calculation of Product Sales resulting from such Combination Sale
shall be determined by multiplying the Gross Combination Sale Amount (less all
Permitted Deductions) by the fraction A/C where A is the wholesale acquisition cost
charged by the Company, its Affiliates or licensees of the Company or its Affiliates in
such country for such Product sold separately in such country, and C is the wholesale
acquisition cost charged by the Company, its Affiliates or licensees of the Company or
its Affiliates in such country for such Combination Product.
	 
	 	(iii)	 	In the event that the Company, its Affiliates or licensees of the Company and
its Affiliates do not sell the Product included in a Combination Sale as a separate
product in the country where such Combination Sale occurs, but do separately sell all
of the other products or active ingredients/components, as the case may be, included in
the Combination Sale in such country, the calculation of Product Sales resulting from
such Combination Sale shall be determined by multiplying the Gross Combination Sale
Amount (less all Permitted Deductions) by the fraction (C-D)/C, where C is the
wholesale acquisition cost charged by the Company, its Affiliates or licensees of the
Company or its Affiliates in such country for such Combination Product, and D is the
aggregate of the wholesale acquisition cost charged by the Company, its Affiliates or
licensees of the Company or its Affiliates, as applicable, in such country, of such
other product(s) or active ingredients/components, as the case may be, included in the
Combination Product and sold separately in such country.




10









 











     If the calculation of Product Sales resulting from a Combination Sale in a country cannot be
determined by any of the foregoing methods, the calculation of Product Sales for such Combination
Sale shall be calculated in a manner determined by the Company in good faith based upon the
relative value of the active components of such Combination Product.



     “Product Sales Measuring Period” means a period equal to the prior four (4) calendar
quarters, calculated as of March 31, June 30, September 30 and December 31 of each calendar year
during the term of this CVR Agreement; provided if the final Product Sales Measuring Period shall
not have ended prior to the Termination Date, then such period shall be deemed to end on the
Termination Date.



     “Product Sales Milestone” means each of (a) Product Sales Milestone #1, (b) Product
Sales Milestone #2, (c) Product Sales Milestone #3 and (d) Product Sales Milestone #4.



     “Product Sales Milestone #1” means the first instance in which the sum of (x) the
aggregate Major Market Product Sales for each Qualifying Major Market plus (y) the aggregate
Product Sales achieved in all countries that are not Qualifying Major Markets during the four
(4)-calendar quarter period that begins on the first anniversary of Product Launch equals or
exceeds a total of four hundred million dollars ($400,000,000).



     “Product Sales Milestone #2” means the first instance in which Product Sales in any
Product Sales Measuring Period are equal to or in excess of one billion eight hundred million
dollars ($1,800,000,000), provided that Product Sales that occur in the Product Sales
Measuring Period or any portion thereof in which Product Sales Milestone #1 is achieved may be
included, if applicable, in the calculation of Product Sales for determining whether Product Sales
Milestone #2 has been achieved.



     “Product Sales Milestone #3” means the first instance in which Product Sales in any
Product Sales Measuring Period are equal to or in excess of two billion three hundred million
dollars ($2,300,000,000), provided that no Product Sales that occur in the Product Sales
Measuring Period in which Product Sales Milestone #1 or Product Sales Milestone #2 is achieved
shall be included in the calculation of Product Sales for determining whether Product Sales
Milestone #3 has been achieved.



     “Product Sales Milestone #4” means the first instance in which Product Sales in any
Product Sales Measuring Period are equal to or in excess of two billion eight hundred million
dollars ($2,800,000,000), provided that no Product Sales that occur in the Product Sales
Measuring Period in which Product Sales Milestone #1, Product Sales Milestone #2 or Product Sales
Milestone #3 is achieved shall be included in the calculation of Product Sales for determining
whether Product Sales Milestone #4 has been achieved.



     “Product Sales Milestone Payment” means (a) two dollars ($2.00) per CVR, with respect
to achieving Product Sales Milestone #1; (b) three dollars ($3.00) per CVR, with respect to
achieving Product Sales Milestone #2, provided that if the Approval Milestone Payment has
not been made prior to achieving Product Sales Milestone #2, this amount shall be four dollars
($4.00) per CVR, but, for the avoidance of doubt, in such event the Approval Milestone Payment
shall not also be payable; (c) four dollars ($4.00) per CVR, with respect to achieving Product



11









 




Sales Milestone #3; and (d) three dollars ($3.00) per CVR, with respect to achieving Product
Sales Milestone #4.




     “Product Sales Milestone Payment Date” means, with respect to each Product Sales
Milestone, the date that is twenty (20) Business Days following notice of the achievement of such
Product Sales Milestone in the applicable Product Sales Statement.



     “Product Sales Statement” means, with respect to each calendar quarter occurring prior
to the Termination Date, the written statement of the Company, certified by the Chief Financial
Officer of the Company and setting forth with reasonable detail:



     (a) for the Product:



          (i) (X) on or prior to the calendar quarter, if any, in which Product Sales Milestone #1 has
been achieved, on a country-by-country quarterly basis for each of the Major Markets and on an
aggregate quarterly basis for all other countries and (Y) after the calendar quarter, if any, in
which Product Sales Milestone #1 has been achieved, in the aggregate for all countries on a
quarterly basis: (I) the total of the gross invoice price charged by the Company, its Affiliates
and its licensees for sales of the Product by the Company, its Affiliates and licensees of the
Company and its Affiliates to third parties during the Product Sales Measuring Period ending on the
last day of such calendar quarter and (II) a calculation of Product Sales during the Product Sales
Measuring Period ending on the last day of such calendar quarter;




          (ii) to the extent that Product Sales for the Product during an applicable period are
determined based on Product Sales of a Combination Product for such period, the method of
determining the Product Sales of the Combination Product attributable to the Product in accordance
with the definition of Product Sales; and




          (iii) to the extent that sales for the Product for an applicable period are recorded in
currencies other than United States dollars, the exchange rates used for conversion of such foreign
currency into United States dollars;




     (b) notice of whether any Product Sales Milestone has been achieved in accordance with this
CVR Agreement during the Product Sales Measuring Period ending on the last day of such calendar
quarter;



     (c) for each calendar quarter ending on or prior to December 31, 2011, the production totals
for Cerezyme and Fabrazyme since January 1, 2011, reported on a quarterly basis and expressed, in
the case of Cerezyme, in units of 400 Unit Vial Equivalents and, in the case of Fabrazyme, in units
of 35-milligram Vial Equivalents, as well as notice of whether the Production Milestone has been
achieved as of the end of such calendar quarter;



     (d) in the aggregate for all countries on a quarterly basis (aggregated on the basis of the
applicable SKU(s)), the total of the gross invoice price charged by the Company, its Affiliates and
licensees of the Company and its Affiliates to third parties during the Product Sales Measuring
Period ending on the last day of such calendar quarter for sales of product that would fall within
the definition of “Product” if not for clause (i) of the proviso to that definition; and



12









 





     (e) in the aggregate for all countries on a quarterly basis (aggregated on the basis of the
applicable SKU(s) outside of the U.S. and on the basis of UNOS reporting within the U.S.), the
total of the gross invoice price charged by the Company, its Affiliates and licensees of the
Company and its Affiliates to third parties during the Product Sales Measuring Period ending on the
last day of such calendar quarter for sales of product that would fall within the definition of
“Product” if not for clause (ii) of the proviso to that definition.



     The amounts in the Product Sales Statement shall be calculated in accordance with Accounting
Standards and shall be derived from and consistent with the audited financial statements contained
in the reports filed with the Trustee pursuant to subsection (a)(i) or (a)(ii) of Section 5.4 of
this CVR Agreement.



     “Production Milestone” means achievement of both of the following, at any time during
the period starting on January 1, 2011 and ending on December 31, 2011 (and including, for the
avoidance of doubt, for the time period on or after January 1, 2011 but prior to the consummation
of the Merger, any production by Genzyme):



     (a) production and Release by the Company (or, in the case of the Allston manufacturing
facility, by The Quantic Group) of a total of seven hundred thirty-four thousand, six hundred
(734,600) 400 Unit Vial Equivalents of Cerezyme; and



     (b) production and Release by the Company (or, in the case of the Allston manufacturing
facility, by The Quantic Group) of a total of seventy-nine thousand (79,000) 35-milligram Vial
Equivalents of Fabrazyme.



     “Production Milestone Payment” means one dollar ($1.00) per CVR.



     “Production Milestone Payment Date” means, with respect to the Production Milestone,
the date that is twenty (20) Business Days following the date of achievement of the Production
Milestone, but no earlier than January 3, 2012.



     “Qualifying Major Market” means a Major Market in which the First Commercial Sale has
been made at any time on or before the end of the sixth (6th) calendar quarter
immediately following the calendar quarter in which the Product Launch occurs.



     “Registration Statement” shall have the meaning set forth in the Recitals of this CVR
Agreement.



     “Release” shall mean the approval, authorization and final release for shipment of
Finished Product for final packaging and labeling based on a review of production and control
records, certificates of analysis, certificates of compliance, and any deviations or investigations
associated with the batch; including verification that the batch meets pre-defined specifications
and was manufactured and tested in accordance with applicable marketing authorization, regulatory
requirements and/or clinical Good Manufacturing Practices to ensure safety, efficacy, and quality.



     “Responsible Officer” when used with respect to the Trustee means any officer assigned
to the Corporate Trust Office and also means, with respect to any particular corporate trust



13









 




matter, any other officer of the Trustee to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.




     “Securities” shall have the meaning set forth in the Preamble of this CVR Agreement.



     “Securities Act” shall have the meaning set forth in the Recitals of this CVR
Agreement.



     “Security Register” shall have the meaning set forth in Section 3.5(a) of this CVR
Agreement.



     “Security Registrar” shall have the meaning set forth in Section 3.5(a) of this CVR
Agreement.



     “Series A Contingent Value Rights” shall have the meaning set forth in Section 3.1(b)
of this CVR Agreement.



     “Shortfall Interest Rate” means a per annum rate equal to the prime rate of interest
quoted by Bloomberg, or similar reputable data source, plus two percent (2%), calculated daily on
the basis of a three hundred sixtyfive (365) day year or, if lower, the highest rate permitted
under applicable Law.



     “Shortfall Report” shall have the meaning set forth in Section 7.6(b) of this CVR
Agreement.



     “Solid Organ Transplant” means live-donor kidney transplants and transplants of the
following organs from cadaveric donors: kidney, pancreas, liver, intestines, heart and lung, but
not the transplantation of stem cells, bone marrow, peripheral blood or cord blood.



     “Subsidiary” means, with respect to any Person, any corporation, limited liability
company, association, partnership or other business entity of which more than fifty percent (50%)
of the total voting power of shares of Voting Securities is at the time owned or controlled,
directly or indirectly, by: (a) such Person; (b) such Person and one or more Subsidiaries of such
Person; or (c) one or more Subsidiaries of such Person.



     “Tax” means any federal, state, local or foreign income, profits, gross receipts,
license, payroll, employment, severance, stamp, occupation, premium, windfall profits,
environmental, customs duty, capital stock, franchise, sales, social security, unemployment,
disability, use, property, withholding, excise, transfer, registration, production, value added,
alternative minimum, occupancy, estimated or any other tax of any kind whatsoever, together with
any interest, penalty or addition thereto, imposed by any Governmental Entity responsible for the
imposition of any such tax, whether disputed or not.



     “Tax Return” means any return, report, declaration, claim or other statement
(including attached schedules) relating to Taxes.



     “Termination Date” means the earlier of (a) December 31, 2020 and (b) the Payment Date
for Product Sales Milestone #4.



14









 





     “Transplant Indications” means the use of a product as an induction agent, an
anti-rejection agent, or a chronic maintenance agent or for any other purpose in Solid Organ
Transplant procedures.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended from time to
time.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this CVR
Agreement, until a successor Trustee shall have become such pursuant to the applicable provisions
of this CVR Agreement, and thereafter “Trustee” shall mean such successor Trustee.



     “Voting Securities” means securities or other interests having voting power, or the
right, to elect or appoint a majority of the directors, or any Persons performing similar
functions, irrespective of whether or not stock or other interests of any other class or classes
shall have or might have voting power or any right by reason of the happening of any contingency.



     SECTION 1.2 Compliance and Opinions.



     (a) Upon any application or request by the Company to the Trustee to take any action under any
provision of this CVR Agreement, the Company shall furnish to the Trustee an Officers’ Certificate
stating that, in the opinion of the signor, all conditions precedent, if any, provided for in this
CVR Agreement relating to the proposed action have been complied with and an Opinion of Counsel
stating, subject to customary exceptions, that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that, in the case of any such application or
request as to which the furnishing of such documents is specifically required by any provision of
this CVR Agreement relating to such particular application or request, no additional certificate or
opinion need be furnished.



     (b) Every certificate or opinion with respect to compliance with a condition or covenant
provided for in this CVR Agreement shall include: (i) a statement that each individual signing
such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of each such individual, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and (iv) a statement as to whether, in the
opinion of each such individual, such condition or covenant has been complied with.



     SECTION 1.3 Form of Documents Delivered to Trustee.



     (a) In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.



15









 





     (b) Any certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession of the Company.



     (c) Any certificate, statement or opinion of an officer of the Company or of counsel may be
based, insofar as it relates to accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the employ of the Company. Any
certificate or opinion of any independent firm of public accountants filed with the Trustee shall
contain a statement that such firm is independent.



     (d) Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this CVR Agreement, they
may, but need not, be consolidated and form one instrument.



     SECTION 1.4 Acts of Holders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this CVR Agreement to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of this CVR Agreement
and (subject to Section 4.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 1.4. The Company may set a record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by vote or consent authorized or
permitted under this CVR Agreement, which date shall be no greater than ninety (90) days and no
less than ten (10) days prior to the date of such vote or consent to any action by vote or consent
authorized or permitted under this CVR Agreement. If not previously set by the Company, (i) the
record date for determining the Holders entitled to vote at a meeting of the Holders shall be the
date preceding the date notice of such meeting is mailed to the Holders, or if notice is not given,
on the day next preceding the day such meeting is held, and (ii) the record date for determining
the Holders entitled to consent to any action in writing without a meeting shall be the first date
on which a signed written consent setting forth the action taken or proposed to be taken is
delivered to the Company. If a record date is fixed, those Persons who were Holders of Securities
at such record date (or their duly designated proxies), and only those Persons, shall be entitled
to take such action by vote or consent or, except with respect to clause (d) below, to revoke any
vote or consent previously given, whether or not such Persons continue to be Holders after such
record date. No such vote or consent shall be valid or effective for more than one hundred twenty
(120) days after such record date.



16









 





     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner which the Trustee deems sufficient.



     (c) The ownership of Securities shall be proved by the Security Register. Neither the Company
nor the Trustee nor any Agent of the Company or the Trustee shall be affected by any notice to the
contrary.



     (d) At any time prior to (but not after) the evidencing to the Trustee, as provided in this
Section 1.4, of the taking of any action by the Holders of the Securities specified in this CVR
Agreement in connection with such action, any Holder of a Security the serial number of which is
shown by the evidence to be included among the serial numbers of the Securities the Holders of
which have consented to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Section 1.4, revoke such action so far as concerns such
Security. Any request, demand, authorization, direction, notice, consent, waiver or other action
by the Holder of any Security shall bind every future Holder of the same Security or the Holder of
every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, suffered or omitted to be done by the Trustee, any Paying
Agent or the Company in reliance thereon, whether or not notation of such action is made upon such
Security.


     SECTION 1.5 Notices, etc., to Trustee and Company. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by
this CVR Agreement to be made upon, given or furnished to, or filed with:




     (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed, in writing, to or with the Trustee at its Corporate
Trust Office; or



     (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first-class postage prepaid, to the Company addressed to it at
[Company address], Attention: [•], or at any other address previously furnished in writing to the
Trustee by the Company.



     SECTION 1.6 Notice to Holders; Waiver.



     (a) Where this CVR Agreement provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this CVR Agreement provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.



17









 





     (b) In case by reason of the suspension of regular mail service or by reason of any other
cause, it shall be impracticable to mail notice of any event as required by any provision of this
CVR Agreement, then any method of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.



     SECTION 1.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies
or conflicts with another provision hereof which is required to be included in this CVR Agreement
by any of the provisions of the Trust Indenture Act, such required provision shall control.



     SECTION 1.8 Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction
hereof.



     SECTION 1.9 Benefits of Agreement. Nothing in this CVR Agreement or in the Securities,
express or implied, shall give to any Person (other than the Parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or equitable right, remedy or
claim under this CVR Agreement or under any covenant or provision herein contained, all such
covenants and provisions being for sole benefit of the Parties hereto and their successors, any
Paying Agent and of the Holders.



     SECTION 1.10 Governing Law. THIS CVR AGREEMENT AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER
IN CONTRACT OR TORT) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS CVR AGREEMENT, OR THE
NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS CVR AGREEMENT (INCLUDING ANY CLAIM OR CAUSE OF ACTION
BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION
WITH THIS CVR AGREEMENT OR AS AN INDUCEMENT TO ENTER INTO THIS CVR AGREEMENT) OR THE SECURITIES,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. EACH OF THE COMPANY, THE TRUSTEE AND EACH OF
THE HOLDERS BY THEIR ACCEPTANCE OF THE SECURITIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON, ARISE OUT OF
OR RELATE TO THIS CVR AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS CVR AGREEMENT
(INCLUDING ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION
OR WARRANTY MADE IN OR IN CONNECTION WITH THIS CVR AGREEMENT OR AS AN INDUCEMENT TO ENTER INTO THIS
CVR AGREEMENT), OR THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY
AND THE TRUSTEE AGREES THAT PROCESS






18









 







MAY BE SERVED UPON THEM IN ANY MANNER AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK FOR SUCH
PERSONS. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT,
BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION OR PROCEEDING WITH RESPECT
TO THIS CVR AGREEMENT (A) THE DEFENSE OF SOVEREIGN IMMUNITY, (B) ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS FOR ANY REASON OTHER THAN THE
FAILURE TO SERVE PROCESS IN ACCORDANCE WITH THIS SECTION 1.10, (C) THAT IT OR ITS PROPERTY IS
EXEMPT OR IMMUNE FROM JURISDICTION OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH
COURTS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE), AND (D) TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW THAT (I) THE SUIT, ACTION OR PROCEEDING IN SUCH COURT IS BROUGHT IN AN
INCONVENIENT FORUM, (II) THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER AND (III) THIS
CVR AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.



     SECTION 1.11 Legal Holidays. In the event that a Payment Date shall not be a Business Day,
then (notwithstanding any provision of this CVR Agreement or the Securities to the contrary)
payment on the Securities need not be made on such date, but may be made, without the accrual of
any interest thereon, on the next succeeding Business Day with the same force and effect as if made
on such Payment Date.



     SECTION 1.12 Separability Clause. In the event any provision in this CVR Agreement or in
the CVRs shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 1.13 No Recourse Against Others. A director, officer or employee, as such, of the
Company or an Affiliate of the Company or the Trustee shall not have any liability for any
obligations of the Company or the Trustee under the Securities or this CVR Agreement or for any
claim based on, in respect of or by reason of such obligations or their creation. By accepting a
Security each Holder waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.



     SECTION 1.14 Counterparts. This CVR Agreement shall be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of this CVR Agreement.



     SECTION 1.15 Acceptance of Trust. [•], the Trustee named herein, hereby accepts the trusts
in this CVR Agreement declared and provided, upon the terms and conditions set forth herein.



     SECTION 1.16 Termination. This CVR Agreement shall terminate and be of no further force or
effect, and the parties hereto shall have no liability hereunder, at 5:00 p.m., New York






19









 







City time, on the Termination Date, provided that if any Milestone has been achieved prior
to the Termination Date, but the associated CVR Payment has not been paid on or prior to the
Termination Date, this CVR Agreement shall not terminate until such CVR Payment has been paid in
full in accordance with the terms of the CVR Agreement; provided further that the
obligations of the Parties to this CVR Agreement set forth in Sections 4.7 and 7.6 and the
obligation of the Company to pay any CVR Payment that is due in accordance with the terms of this
CVR Agreement shall survive termination of this CVR Agreement in accordance with its terms and
provided further that no termination of this CVR Agreement shall be deemed to
affect the rights of the parties set forth in Article 8 of this CVR Agreement to bring suit in the
case of a Breach occurring prior to such Termination Date.




ARTICLE 2




SECURITY FORMS



     SECTION 2.1 Forms Generally.



     (a) The Securities and the Trustee’s certificate of authentication shall be in the forms set
forth in Annex A, attached hereto and incorporated herein by this reference, with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this CVR Agreement and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may be required by Law or any rule or regulation pursuant thereto, all as
may be determined by the officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the Security.



     (b) The definitive Securities shall be typewritten, printed, lithographed or engraved on steel
engraved borders or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their execution of such
Securities.



ARTICLE 3




THE SECURITIES



     SECTION 3.1 Title and Payment Terms.



     (a) The aggregate number of CVRs in respect of which CVR Certificates may be authenticated and
delivered under this CVR Agreement is limited to a number equal to [•], except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.4, 3.5, 3.6 or 6.6. From and after the Effective Time, the
Company shall not be permitted to issue any CVRs that have the right to receive any portion of the
Approval Milestone Payment, the Product Sales Milestone Payments or the Production Milestone
Payment, except as provided and in accordance with the terms and conditions of the Merger
Agreement.



20









 





     (b) The Securities shall be known and designated as the “Series A Contingent Value
Rights” of the Company.



     (c) On each Product Sales Milestone Payment Date, the Company shall pay to the Trustee, by
wire transfer to the account designated by the Trustee on the date hereof, an amount equal to the
product of (i) the Product Sales Milestone Payment due on such Product Sales Milestone Payment Date
multiplied by (ii) the number of Securities Outstanding, and the Trustee shall promptly (but in any
event within two (2) Business Days) pay to each Holder of record of the Securities as of the close
of business in New York City, three (3) Business Days prior to such Product Sales Payment Date (a
“PSM Record Date”), an amount equal to the product of (i) such Product Sales Milestone
Payment multiplied by (ii) the number of Securities held by such Holder as of such PSM Record Date.
Notwithstanding the foregoing, in no event shall the Company be required to pay a Product Sales
Milestone Payment more than once in relation to any particular Product Sales Milestone, and the
Company shall not be required to pay any Product Sales Payment in relation to a Product Sales
Milestone occurring after the Termination Date.



     (d) On the Approval Milestone Payment Date, the Company shall pay to the Trustee, by wire
transfer to the account designated by the Trustee on the date hereof, an amount equal to the
product of (i) the Approval Milestone Payment multiplied by (ii) the number of Securities
Outstanding, and the Trustee shall promptly (but in any event within two (2) Business Days) pay to
each Holder of record of the Securities as of the close of business in New York City, three (3)
Business Days prior to the Approval Milestone Payment Date (the “Approval Record Date”), an
amount equal to the product of (i) the Approval Milestone Payment multiplied by (ii) the number of
Securities held by such Holder as of the Approval Record Date. Notwithstanding the foregoing, in
no event shall the Company be required to pay the Approval Milestone Payment more than once.



     (e) On the Production Milestone Payment Date, the Company shall pay to the Trustee, by wire
transfer to the account designated by the Trustee on the date hereof, an amount equal to the
product of (i) the Production Milestone Payment multiplied by (ii) the number of Securities
Outstanding, and the Trustee shall promptly (but in any event within two (2) Business Days) pay to
each Holder of record of the Securities as of the close of business in New York City, three (3)
Business Days prior to the Production Milestone Payment Date (the “Production Record
Date”), an amount equal to the product of (i) the Production Milestone Payment multiplied by
(ii) the number of Securities held by such Holder as of the Production Record Date.
Notwithstanding the foregoing, in no event shall the Company be required to pay the Production
Milestone Payment more than once.



     (f) The Holders of the CVR Certificates, by acceptance thereof, agree that no joint venture,
partnership or other fiduciary relationship is created hereby or by the Securities.



     (g) Other than in the case of interest on amounts due and payable after the occurrence of a
Breach or with respect to any CVR Shortfall, no interest or dividends shall accrue on any amounts
payable in respect of the CVRs.



     (h) Except to the extent otherwise required pursuant to a “determination” within the meaning
of Section 1313(a) of the Code, the Parties hereto shall determine the portion of any



21









 




CVR Payment required to be treated as interest for U.S. federal income tax purposes pursuant
to Section 483 of the Code and the Treasury Regulations promulgated thereunder.




     (i) The Holder of any CVR or CVR Certificate is not, and shall not, by virtue thereof, be
entitled to any rights of a holder of any Voting Securities or other equity security or other
ownership interest of the Company, in any constituent company to the Merger or in any of such
companies’ Affiliates or other subsidiaries, either at Law or in equity, and the rights of the
Holders are limited to those contractual rights expressed in this CVR Agreement.



     (j) Except as provided in this CVR Agreement (including, without limitation, Section 7.6),
none of the Company or any of its Affiliates shall have any right to set off any amounts owed or
claimed to be owed by any Holder to any of them against such Holder’s Securities or any CVR Payment
or other amount payable to such Holder in respect of such Securities.



     (k) In the event that all of the CVR Certificates not previously cancelled shall have become
due and payable pursuant to the terms hereof, all disputes with respect to amounts payable to the
Holders brought pursuant to the terms and conditions of this CVR Agreement have been resolved, and
the Company has paid or caused to be paid or deposited with the Trustee all amounts payable to the
Holders under this CVR Agreement (including any amounts determined in accordance with Section 7.6),
then this CVR Agreement shall cease to be of further effect and shall be deemed satisfied and
discharged. Notwithstanding the satisfaction and discharge of this CVR Agreement, the obligations
of the Company under Section 4.7(c) shall survive.



     SECTION 3.2 Registrable Form. The Securities shall be issuable only in registered form.



     SECTION 3.3 Execution, Authentication, Delivery and Dating.



     (a) The Securities shall be executed on behalf of the Company by its Chief Executive Officer
or any other person duly authorized to act on behalf of the Company for such purpose or any general
purpose, but need not be attested. The signature of any of these persons on the Securities may be
manual or facsimile.



     (b) Securities bearing the manual or facsimile signatures of individuals who were, at the time
of execution, the proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such Securities.



     (c) At any time and from time to time after the execution and delivery of this CVR Agreement,
the Company may deliver Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Securities; and the
Trustee, in accordance with such Company Order, shall authenticate and deliver such Securities as
provided in this CVR Agreement and not otherwise.



     (d) Each Security shall be dated the date of its authentication.



22









 





     (e) No Security shall be entitled to any benefit under this CVR Agreement or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee, by manual or facsimile
signature of an authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this CVR Agreement.



     SECTION 3.4 Temporary Securities.



     (a) Pending the preparation of definitive Securities, the Company may execute, and upon
Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such Securities may
determine with the concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this CVR Agreement as may be appropriate. Every temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Securities.



     (b) If temporary Securities are issued, the Company shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose pursuant to Section
7.2, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like amount of definitive Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this CVR Agreement as definitive
Securities.



     SECTION 3.5 Registration, Registration of Transfer and Exchange.



     (a) The Company shall cause to be kept at the office of the Trustee a register (the register
maintained in such office and in any other office or agency designated pursuant to Section 7.2
being herein sometimes referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee is hereby initially appointed “Security
Registrar” for the purpose of registering Securities and transfers of Securities as herein
provided.



     (b) Upon surrender for registration of transfer of any Security at the office or agency of the
Company designated pursuant to Section 7.2, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
CVR Certificates representing the same aggregate number of CVRs represented by the CVR Certificate
so surrendered that are to be transferred and the Company shall execute and the Trustee shall
authenticate and deliver, in the name of the transferor, one or more new CVR Certificates
representing the aggregate number of CVRs represented by such CVR Certificate that are not to be
transferred.



23









 





     (c) At the option of the Holder, CVR Certificates may be exchanged for other CVR Certificates
that represent in the aggregate the same number of CVRs as the CVR Certificates surrendered at such
office or agency. Whenever any CVR Certificates are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the CVR Certificates which the Holder
making the exchange is entitled to receive.



     (d) All Securities issued upon any registration of transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same rights, and entitled to the same benefits
under this CVR Agreement, as the Securities surrendered upon such registration of transfer or
exchange.



     (e) Every Security presented or surrendered for registration of transfer or for exchange shall
(if so required by the Company or the Security Registrar) be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.



     (f) No service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any documentary, stamp
or similar tax or other similar governmental charge payable in connection with any registration of
transfer or exchange of Securities, other than (i) exchanges pursuant to Sections 3.4, 3.6 or 6.6
not involving any transfer or (ii) transfers pursuant to Article 10.



     SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.



     (a) If (i) any mutilated Security is surrendered to the Trustee, or (ii) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security,
and there is delivered to the Company and the Trustee an affidavit of loss in respect of such
Security, then, in the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and, upon delivery of a Company Order,
the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new CVR Certificate of like tenor and amount of
CVRs, bearing a number not contemporaneously outstanding.



     (b) In case any such mutilated, destroyed, lost or stolen Security has become or is to become
finally due and payable within fifteen (15) days, the Company in its discretion may, instead of
issuing a new CVR Certificate, pay to the Holder of such Security on the applicable Payment Date,
as the case may be, all amounts due and payable with respect thereto.



     (c) Every new Security issued pursuant to this Section 3.6 in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this CVR Agreement equally and proportionately with any
and all other Securities duly issued hereunder.



     (d) The provisions of this Section 3.6 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.



24









 





     SECTION 3.7 Payments with Respect to CVR Certificates. Payment of any amounts pursuant to
the CVRs shall be made in such coin or currency of the United States of America as at the time is
legal tender for the payment of public and private debts. The Company may, at its option, pay such
amounts by wire transfer or check payable in such money.



     SECTION 3.8 Persons Deemed Owners. Prior to the time of due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security for the purpose of
receiving payment on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.



     SECTION 3.9 Cancellation. All Securities surrendered for payment, registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company shall promptly deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company has
acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 3.9, except as expressly permitted by this CVR Agreement.
All cancelled Securities held by the Trustee shall be destroyed and a certificate of destruction
shall be issued by the Trustee to the Company, unless otherwise directed by a Company Order.



     SECTION 3.10 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of Failure
Purchase Offer as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a Failure Purchase Offer and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such Failure Purchase Offer shall
not be affected by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee in writing of any change in the “CUSIP” numbers.



ARTICLE 4




THE TRUSTEE



     SECTION 4.1 Certain Duties and Responsibilities.



     (a) With respect to the Holders, the Trustee, prior to the occurrence of a Breach (as defined
in Section 8.1) with respect to the Securities and after the curing or waiving of all Breaches
which may have occurred, undertakes to perform such duties and only such duties as are specifically
set forth in this CVR Agreement and no implied covenants shall be read into this CVR Agreement
against the Trustee. In case a Breach with respect to the Securities has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by
this CVR Agreement, and use the same degree of care and skill in their exercise, as a reasonably
prudent person would exercise or use under the circumstances in the conduct of his or her own
affairs.



25









 





     (b) In the absence of bad faith on its part, prior to the occurrence of a Breach and after the
curing or waiving of all such Breaches which may have occurred, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee which conform to the requirements of this CVR
Agreement; but in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this CVR Agreement.



     (c) No provision of this CVR Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that (i) this Subsection (c) shall not be construed to limit the effect of
Subsections (a) and (b) of this Section 4.1; (ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 8.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this CVR Agreement.



     (d) Whether or not therein expressly so provided, every provision of this CVR Agreement
relating to the conduct or affecting the liability of or affording protection to the Trustee shall
be subject to the provisions of this Section 4.1.



     SECTION 4.2 Certain Rights of Trustee. Subject to the provisions of Section 4.1, including
without limitation, the duty of care that the Trustee is required to exercise upon the occurrence
of a Breach:




     (a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee need not investigate any fact or
matter stated in the document;




     (b) any request or direction or order of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution and the Trustee shall not
be liable for any action it takes or omits to take in good faith reliance thereon;




     (c) whenever in the administration of this CVR Agreement the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers’ Certificate and the Trustee
shall not be liable for any action it takes or omits to take in good faith reliance thereon
or an Opinion of Counsel;



26









 






     (d) the Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;




     (e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this CVR Agreement at the request or direction of any of the Holders
pursuant to this CVR Agreement, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;




     (f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document, but the Trustee in its discretion may make such further inquiry or
investigation into such facts or matters as it may see fit, and if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney, as necessary
for such inquiry or investigation;




     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;




     (h) the Trustee shall not be liable for any action taken, suffered or omitted to be
taken by it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this CVR Agreement;




     (i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Paying Agent, the Security Registrar, the Trustee in each of its
capacities hereunder, and each agent, custodian and other Person employed to act hereunder;




     (j) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action; and




     (k) certain of the Trustee’s duties hereunder may be performed by the Paying Agent or
Security Registrar.



     SECTION 4.3 Notice of Breach. If a breach occurs hereunder with respect to the Securities,
the Trustee shall give the Holders notice of any such breach actually known to it as and to the
extent applicable and provided by the Trust Indenture Act; provided, however, that
in the case of any breach of the character specified in Section 8.1(b) with respect to the
Securities, no notice to Holders shall be given until at least thirty (30) days after the
occurrence thereof. For



27









 




the purpose of this Section 4.3, the term “breach” means any event that is, or after notice or
lapse of time or both would become, a Breach with respect to the Securities.




     SECTION 4.4 Not Responsible for Recitals or Issuance of Securities. The Trustee shall not
be accountable for the Company’s use of the Securities. The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this CVR Agreement or of the Securities.



     SECTION 4.5 May Hold Securities. The Trustee, any Paying Agent, Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, and, subject to Sections 4.8 and 4.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.



     SECTION 4.6 Money Held in Trust. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by Law. The Trustee shall be under no
liability for interest on any money received by it hereunder, except as otherwise agreed by the
Trustee in writing with the Company.



     SECTION 4.7 Compensation and Reimbursement. The Company agrees:




     (a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amount as the Company and the Trustee shall agree from time
to time (which compensation shall not be limited by any provision of Law in regard to the
compensation of a trustee of an express trust);




     (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this CVR Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the Trustee’s
negligence, bad faith or willful misconduct; and




     (c) to indemnify the Trustee and each of its agents, officers, directors and employees
(each an “indemnitee”) for, and to hold it harmless against, any loss, liability or
expense (including attorneys fees and expenses) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration of this
trust and the performance of its duties hereunder, including the reasonable costs and
expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Company’s payment obligations
pursuant to this Section 4.7 shall survive the termination of this CVR Agreement. When the
Trustee incurs expenses after the occurrence of a Breach specified in Section 8.1(c) or
8.1(d) with respect to the Company, the expenses are intended to constitute expenses of
administration under bankruptcy Laws.



     SECTION 4.8 Disqualification; Conflicting Interests.



28









 





     (a) If applicable, to the extent that the Trustee or the Company determines that the Trustee
has a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall
immediately notify the Company of such conflict and, within ninety (90) days after ascertaining
that it has such conflicting interest, either eliminate such conflicting interest or resign to the
extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and
this CVR Agreement. The Company shall take prompt steps to have a successor appointed in the
manner provided in this CVR Agreement.



     (b) In the event the Trustee shall fail to comply with the foregoing subsection 4.8(a), the
Trustee shall, within ten (10) days of the expiration of such ninety (90) day period, transmit a
notice of such failure to the Holders in the manner and to the extent provided in the Trust
Indenture Act and this CVR Agreement.



     (c) In the event the Trustee shall fail to comply with the foregoing subsection 4.8(a) after
written request therefor by the Company or any Holder, any Holder of any Security who has been a
bona fide Holder for at least six (6) months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.



     SECTION 4.9 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder which satisfies the applicable requirements of Sections 310(a)(1) and (5) of the Trust
Indenture Act and has a combined capital and surplus of at least one hundred fifty million dollars
($150,000,000). If such corporation publishes reports of condition at least annually, pursuant to
Law or to the requirements of a supervising or examining authority, then for the purposes of this
Section 4.9, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 4.9, it shall resign immediately in the manner and with the effect hereinafter specified in
this Article 4.



     SECTION 4.10 Resignation and Removal; Appointment of Successor.



     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article 4 shall become effective until the acceptance of appointment by the
successor Trustee under Section 4.11.



     (b) The Trustee, or any trustee or trustees hereafter appointed, may resign at any time by
giving written notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.



     (c) The Trustee may be removed at any time by a demand in writing by the Holders of at least a
majority of the Outstanding CVRs delivered to the Trustee and to the Company.



     (d) If at any time:



29









 






     (i) the Trustee shall fail to comply with Section 4.8 after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for at least six
(6) months; or




     (ii) the Trustee shall cease to be eligible under Section 4.9 and shall fail to resign
after written request therefor by the Company or by any such Holder; or




     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in any case, (A) the Company, by a Board Resolution or action of the Chief Executive Officer,
may remove the Trustee, or (B) the Holder of any Security who has been a bona fide Holder of a
Security for at least six (6) months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution and/or
action of the Chief Executive Officer, shall promptly appoint a successor Trustee. If, within one
(1) year after any removal by the Holders of at least a majority of the Outstanding CVRs, a
successor Trustee shall be appointed by act of the Holders of at least a majority of the
Outstanding CVRs delivered to the Company and the retiring Trustee the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 4.11,
become the successor Trustee and supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the Holders of the Securities and
accepted appointment within sixty (60) days after the retiring Trustee tenders its resignation or
is removed, the retiring Trustee may, or, the Holder of any Security who has been a bona fide
Holder for at least six (6) months may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee.



     (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office. If the Company fails to send such notice within ten (10) days after
acceptance of appointment by a successor Trustee, it shall not be a breach hereunder but the
successor Trustee shall cause the notice to be mailed at the expense of the Company.



     SECTION 4.11 Acceptance of Appointment of Successor.



     (a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the



30









 




rights, powers, trusts and duties of the retiring Trustee; but, upon request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.




     (b) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article 4.



     SECTION 4.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the corporate trust business of
the Trustee, by sale or otherwise shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article 4, without the
execution or filing of any paper or any further act on the part of any of the Parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion, sale or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such Securities; and such certificate shall have
the full force which it is anywhere in the Securities or in this CVR Agreement provided that the
certificate of the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.



     SECTION 4.13 Preferential Collection of Claims Against Company. If and when the Trustee
shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company
(or any other obligor upon the Securities), excluding any creditor relationship set forth in
Section 311(b) of the Trust Indenture Act, if applicable, the Trustee shall be subject to the
applicable provisions of the Trust Indenture Act regarding the collection of claims against the
Company (or any such other obligor).



ARTICLE 5




HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE AND COMPANY



     SECTION 5.1 Company to Furnish Trustee with Names and Addresses of Holders. The Company
shall furnish or cause to be furnished to the Trustee (a) promptly after the issuance of the
Securities, and semi-annually thereafter, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a recent date, and (b) at such times as
the Trustee may request in writing, within thirty (30) days after receipt by the Company of any
such request, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of a date not more than fifteen (15) days prior to the time such list
is furnished; provided, however, that if and so long as the Trustee shall be the
Security Registrar, no such list need be furnished.




31











 





     SECTION 5.2 Preservation of Information; Communications to Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of the Holders contained in the most recent list furnished to the Trustee as provided
in Section 5.1 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.1
upon receipt of a new list so furnished.



     (b) The rights of the Holders to communicate with other Holders with respect to their rights
under this CVR Agreement and the corresponding rights and privileges of the Trustee shall be as
provided by Section 312(b)(2) of the Trust Indenture Act, if applicable.



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee shall be deemed to be in violation of Law or
held accountable by reason of the disclosure of any such information as to the names and addresses
of the Holders made pursuant to the Trust Indenture Act (if applicable) regardless of the source
from which such information was derived.



     SECTION 5.3 Reports by Trustee.



     (a) Within sixty (60) days after December 31 of each year commencing with the December 31
following the date of this CVR Agreement, the Trustee shall transmit to all Holders such reports
concerning the Trustee and its actions under this CVR Agreement as may be required pursuant to the
Trust Indenture Act to the extent and in the manner provided pursuant thereto. The Trustee shall
also comply with Section 313(b)(2) of the Trust Indenture Act, if applicable. The Trustee shall
also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act, if
applicable.



     (b) A copy of each such report shall, at the time of such transmission to the Holders, be
filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with
the Commission and also with the Company. The Company shall promptly notify the Trustee when the
Securities are listed on any stock exchange.



     SECTION 5.4 Reports by Company. The Company shall: (a) file with the Trustee, (i) within fifteen (15) days after the Company
files or furnishes the same with the Commission, copies of the annual reports filed on Form 20-F or
the semi-annual earnings reports furnished on Form 6-K, as the case may be, and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the Company is required to file
with or furnish to the Commission, pursuant to Section 13 or Section 15(d) of the Exchange Act
(such annual and semi-annual reports and required information, documents and other reports,
together the “Exchange Act Documents”), (ii) if the Company does not file such annual
reports on Form 20-F or furnish such semi-annual earnings reports on Form 6-K
with or to the Commission, within forty-five (45) days after June 30 of each calendar year,
semi-annual financial information and, within ninety (90) days after each calendar year, annual
financial information, in each case calculated in accordance with Accounting Standards applied
consistently with the application of such standards in either the Company’s prior semi-annual
earnings reports on Form 6-K and annual



32









 







reports on Form 20-F, as applicable, or in the Company’s
prior reported financial statements filed or furnished in its home jurisdiction, (iii) copies of
any quarterly financial information or earnings reports made public by the Company or made
available on the Company’s website, within fifteen (15) days after such information or reports are
furnished or otherwise made public or available, (iv) within fifty (50) days after the end of each
calendar quarter, a Product Sales Statement with respect to the last completed Product Sales
Measuring Period, and (v) within four (4) Business Days after the occurrence of the Approval
Milestone, a notice setting forth the occurrence of the Milestone, the amount of the payment
payable in connection with such Milestone and the applicable Payment Date of such Milestone; (b)
file with the Trustee such additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this CVR Agreement as may be required from time
to time by the rules and regulations of the Commission; and (c) make available to the Holders on
the Company’s website as of an even date with the filing of such materials with the Trustee, the
information, documents and reports required to be filed by the Company pursuant to subsections (a)
or (b) of this Section 5.4.



ARTICLE 6




AMENDMENTS



     SECTION 6.1 Amendments without Consent of Holders. Without the consent of any Holders, the Company and the Trustee, at any time and from time to
time, may enter into one or more amendments hereto or to the Securities, for any of the following
purposes:




     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities any property or assets;




     (b) to evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities;




     (c) to add to the covenants of the Company such further covenants, restrictions,
conditions or provisions as the Board of Directors and/or the Chief Executive Officer of the
Company and the Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance, of a breach in
any such additional covenants, restrictions, conditions or provisions a Breach permitting
the enforcement of all or any of the several remedies provided in this CVR Agreement as
herein set forth; provided, that in respect of any such additional covenant, restriction,
condition or provision, such amendment may provide for a particular period of grace after
breach (which period may be shorter or longer than that allowed in the case of other
breaches) or may provide for an immediate enforcement upon such a Breach or
may limit the remedies available to the Trustee upon such a Breach or may limit the
right of the Acting Holders to waive such a Breach;




     (d) to cure any ambiguity, or to correct or supplement any provision herein or in the
Securities which may be defective or inconsistent with any other provision herein;
provided that such amendment shall not adversely affect the interests of the
Holders;



33









 






     (e) to make any other provisions with respect to matters or questions arising under
this CVR Agreement; provided that such provisions shall not adversely affect the
interests of the Holders;




     (f) to make any amendments or changes necessary to comply or maintain compliance with
the Trust Indenture Act, if applicable; or




     (g) make any change that does not adversely affect the interests of the Holders.



     Promptly following any amendment of this CVR Agreement or the Securities in accordance with
this Section 6.1, the Trustee shall notify the Holders of the Securities of such amendment;
provided that any failure so to notify the Holders shall not affect the validity of such
amendment.



     SECTION 6.2 Amendments with Consent of Holders. With the consent of the Holders of at least a majority of the Outstanding CVRs, by Act of said
Holders delivered to the Company and the Trustee (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer for, the Securities), the
Company (when authorized by a Board Resolution and/or the Chief Executive Officer) and the Trustee
may enter into one or more amendments hereto or to the Securities for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this CVR Agreement
or to the Securities or of modifying in any manner the rights of the Holders under this CVR
Agreement or to the Securities; provided, however, that no such amendment shall,
without the consent of the Holder of each Outstanding Security affected thereby:




     (a) modify in a manner adverse to the Holders (i) any provision contained herein with
respect to the termination of this CVR Agreement or the Securities, (ii) the time for
payment and amount of any Product Sales Milestone Payment, the Approval Milestone Payment or
the Production Milestone Payment, or otherwise extend the time for payment of the Securities
or reduce the amounts payable in respect of the Securities or modify any other payment term
or payment date. Notwithstanding the foregoing, each Holder of a Security by acceptance
thereof, consents to the Failure Purchase Offer provisions as set forth in Article 10
hereof;




     (b) reduce the number of CVRs, the consent of whose Holders is required for any such
amendment; or




     (c) modify any of the provisions of this Section 6.2, except to increase the percentage
of Holders from whom consent is required or to provide that certain other
provisions of this CVR Agreement cannot be modified or waived without the consent of
the Holder of each Security affected thereby.



     SECTION 6.3 Execution of Amendments. In executing any amendment permitted by this Article 6, the Trustee (subject to Section 4.1)
shall be fully protected in relying upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this CVR Agreement. The Trustee shall execute any
amendment authorized pursuant to this Article 6 if the amendment does not adversely affect the
Trustee’s own rights, duties or



34









 







immunities under this CVR Agreement or otherwise. Otherwise, the
Trustee may, but need not, execute such amendment.



     SECTION 6.4 Effect of Amendments; Notice to Holders.



     (a) Upon the execution of any amendment under this Article 6, this CVR Agreement and the
Securities shall be modified in accordance therewith, and such amendment shall form a part of this
CVR Agreement and the Securities for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.



     (b) Promptly after the execution by the Company and the Trustee of any amendment pursuant to
the provisions of this Article 6, the Company shall mail a notice thereof by first-class mail to
the Holders of Securities at their addresses as they shall appear on the Security Register, setting
forth in general terms the substance of such amendment. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such amendment.



     SECTION 6.5 Conformity with Trust Indenture Act. Every amendment executed pursuant to this Article 6 shall conform to the applicable requirements
of the Trust Indenture Act, if any.



     SECTION 6.6 Reference in Securities to Amendments. If an amendment changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. Securities authenticated and delivered after the execution
of any amendment pursuant to this Article 6 may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such amendment. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
on the one hand and the Board of Directors and/or the Chief Executive Officer on the other hand, to
any such amendment may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities. Failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment.



ARTICLE 7




COVENANTS



     SECTION 7.1 Payment of Amounts, if any, to Holders. The Company shall duly and punctually pay the amounts, if any, on the Securities in accordance
with the terms of the Securities and this CVR Agreement. Such amounts shall be considered paid on
the applicable Payment Date if on such date the Trustee or the Paying Agent holds in accordance
with this CVR Agreement money sufficient to pay all such amounts then due. Notwithstanding any
other provision of this CVR Agreement, the Company or any of its Affiliates (including the
Surviving Corporation, as applicable), the Trustee or the Paying Agent, shall be entitled to deduct
and withhold, or cause to be deducted and withheld, from any amounts payable or otherwise
deliverable pursuant to this CVR Agreement to any Holder such amounts as are required to be
deducted and withheld therefrom under the United States Internal Revenue Code of 1986, as amended,
or the Treasury Regulations thereunder or any other Tax Law, it being understood that,



35









 







based on
discussions with qualified French counsel, the Company believes that, as of the date hereof, no
such withholding or deduction would be required under the Laws of France from any amounts payable
or otherwise deliverable pursuant to this CVR Agreement except to the extent otherwise required by
a change in Law (or official interpretation thereof announced by the French taxing authorities)
after the date hereof. Accordingly, no withholding or deduction shall be made under the Laws of
France from any amounts payable or otherwise deliverable pursuant to this CVR Agreement except to
the extent that any such deduction or withholding shall be required by a change in Law (or official
interpretation thereof announced by the French taxing authorities) after the date hereof.



     SECTION 7.2 Maintenance of Office or Agency.



     (a) As long as any of the Securities remain Outstanding, the Company shall maintain in the
Borough of Manhattan, The City of New York an office or agency (i) where Securities may be
presented or surrendered for payment, (ii) where Securities may be surrendered for registration of
transfer or exchange and (iii) where notices and demands to or upon the Company in respect of the
Securities and this CVR Agreement may be served. The office or agency of the Trustee at [•] shall
be such office or agency of the Company, unless the Company shall designate and maintain some other
office or agency for one or more of such purposes. The Company or any of its Subsidiaries may act
as Paying Agent, registrar or transfer agent; provided that such Person shall take
appropriate actions to avoid the commingling of funds. The Company shall give prompt written
notice to the Trustee of any change in the location of any such office or agency. If at any time
the Company shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.



     (b) The Company may from time to time designate one or more other offices or agencies (outside
France and in or outside of The City of New York) where the Securities may
be presented or surrendered for any or all such purposes, and may from time to time rescind
such designation; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York for such purposes. The Company shall give prompt written notice
to the Trustee of any such designation or rescission and any change in the location of any such
office or agency.



     SECTION 7.3 Money for Security Payments to Be Held in Trust.



     (a) If the Company or any of its Subsidiaries shall at any time act as the Paying Agent, it
shall, on or before the Payment Date, as the case may be, segregate and hold in trust for the
benefit of the Holders all sums held by such Paying Agent for payment on the Securities until such
sums shall be paid to the Holders as herein provided, and shall promptly notify the Trustee of any
failure of the Company to make payment on the Securities.



     (b) Whenever the Company shall have one or more Paying Agents for the Securities, it shall, on
or before a Payment Date deposit with a Paying Agent a sum in same day funds sufficient to pay the
amount, if any, so becoming due; such sum to be held in trust for the benefit



36









 







of the Persons
entitled to such amount, and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee of such action or any failure so to act.



     (c) The Company shall cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 7.3, that (i) such Paying Agent shall hold all sums held by it for the
payment of any amount payable on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall notify the Trustee of the sums so held and (ii) that it shall give the Trustee notice of
any failure by the Company (or by any other obligor on the Securities) to make any payment on the
Securities when the same shall be due and payable.



     (d) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment on any Security and remaining unclaimed for one (1) year after the Payment
Date shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon cease.



     SECTION 7.4 Certain Purchases and Sales. The Company or any of its Subsidiaries or Affiliates may acquire in open market transactions,
private transactions or otherwise, the Securities, provided that prior to any acquisition
of any Securities, the Company must publicly disclose the amount of Securities which it has been
authorized to acquire and the Company must report in each of its annual and semi-annual reports the
amount of Securities it has been authorized to acquire as well as the amount of Securities it
has acquired as of the end of the half-year or annual period reported in such annual or semi-annual
report.



     SECTION 7.5 Books and Records. The Company shall keep, and shall cause its Subsidiaries to keep, true, complete and accurate
records in sufficient detail to enable the amounts payable under this CVR Agreement to be
determined by the Holders and their consultants or professional advisors, for a period of three (3)
years following the end of any Product Sales Measuring Period.



     SECTION 7.6 Audits.



     (a) Upon the written request of the Acting Holders (but no more than once during any calendar
year), and upon reasonable notice, the Company shall provide an independent certified public
accounting firm of nationally recognized standing jointly agreed upon by the Acting Holders and the
Company (failing agreement on which each shall designate an independent public accounting firm of
its own selection, which firms shall in turn appoint an independent public accounting firm for such
purpose) (the “Independent Accountant”) with access during normal business hours to such of
the records of the Company as may be reasonably necessary to verify the accuracy of the statements
set forth in the Product Sales Statements and the figures underlying the calculations set forth
therein for any period within the preceding three (3) years that has not previously been audited in
accordance with this Section 7.6. The fees charged by such accounting firm shall be paid by the
Company. The Independent Accountant shall disclose



37









 







to the Acting Holders any matters directly
related to their findings and shall disclose whether it has determined that any statements set
forth in the Product Sales Statements are incorrect. The Independent Accountant shall provide the
Company with a copy of all disclosures made to the Acting Holders. This covenant shall survive the
termination of this CVR Agreement for a period of one (1) year. The initiation of a review by the
Acting Holders as contemplated by this Section 7.6 shall not relieve the Company of its obligation
to pay any Product Sales Milestone Payment relating to any Product Sales Milestone for which notice
of achievement has been given in a Product Sales Statement, it being understood that the Company
shall also be obligated to pay the full amount of the CVR Shortfall, if any, determined in
accordance with Section 7.6(b).



     (b) If the Independent Accountant concludes that the Production Milestone Payment or any
Product Sales Milestone Payment should have been paid but was not paid when due, the Company shall
pay each Holder of a CVR the amount of such Production Milestone Payment or Product Sales Milestone
Payment (to the extent not paid on a subsequent date), as applicable, plus interest on such
Production Milestone Payment or Product Sales Milestone Payment, as applicable, at the Shortfall
Interest Rate from the Production Milestone Payment Date or the date the Product Sales Milestone
Payment Date should have occurred (if the Company had given notice of achievement of such Product
Sales Milestone pursuant to the terms of this CVR Agreement), as applicable, to the date of actual
payment (such amount including interest being the “CVR Shortfall”). The Company shall pay
the CVR Shortfall to the CVR Holders of record as of a date that is three (3) Business Days prior
to a Payment Date selected by the Company, which Payment Date must be within sixty (60) days of the
date the Acting Holders deliver to the
Company the Independent Accountant’s written report (the “Shortfall Report”). The
decision of such Independent Accountant shall be final, conclusive and binding on the Company and
the Holders, shall be nonappealable and shall not be subject to further review.



     (c) Upon the expiration of three (3) years following the end of any Product Sales Measuring
Period, the calculations set forth in the Product Sales Statement shall be conclusive and binding
on each Holder.



     (d) Each person seeking to receive information from the Company in connection with a review or
audit shall enter into, and shall cause its accounting firm to enter into, a reasonable and
mutually satisfactory confidentiality agreement with the Company obligating such party to retain
all such financial information disclosed to such party in confidence pursuant to such
confidentiality agreement and not use such information for any purpose other than the completion of
such review or audit.



     (e) The Company shall not, and shall cause its Affiliates not to, enter into any license or
distribution agreement with any third party (other than the Company or its Affiliates) with respect
to any Product unless such agreement contains provisions that would allow any Independent
Accountant appointed pursuant to this Section 7.6 such access to the records of the other party to
such license or distribution agreement as may be reasonably necessary to perform its duties
pursuant to this Section 7.6; provided that the Company and its Affiliates shall not be
required to amend any Existing Licenses. The Parties agree that, if the Company or its Affiliates
have exercised audit rights under any license or distribution agreement prior to the Acting
Holders’ request for an audit under this Section 7.6 and under such license or distribution
agreement the Company and its Affiliates cannot request another audit, the results of the



38









 







Company’s
prior audit of such licensee or distributor shall be used for purposes of the audit requested by
the Acting Holders under this Section 7.6 and that the Company shall not have any further
obligation to provide access to an Independent Accountant with respect to such licensee until such
time as the Company may again exercise its rights of audit under the license agreement with such
licensee.



     SECTION 7.7 Listing of CVRs. The Company hereby covenants and agrees it shall use its commercially reasonable efforts to
maintain a listing for trading on the Nasdaq Capital Market or other national securities exchange
for so long as any CVRs remain Outstanding.



     SECTION 7.8 Restrictive Covenants. So long as any of the Securities remain Outstanding, subject to Section 7.9 and Article 9, the
Company shall not take or permit to be taken any of the following actions:



     (a) voluntarily liquidate, dissolve or wind-up; or



     (b) enter into any transaction as a result of which no member of the Company Group would own
or control directly all or substantially all of the economic interest in the Product.



     SECTION 7.9 Product Transfer.



     (a) The Company and its Affiliates may not, directly or indirectly, by a sale or swap of
assets, merger, reorganization, joint venture, lease, license or any other transaction or
arrangement, sell, transfer, revert, convey or otherwise dispose of their respective rights in and
to Cerezyme or Fabrazyme to a third party (other than the Company or its Affiliates) at any time on
or prior to December 31, 2011, excluding sale or license of such products in the ordinary course of
business.



     (b) Subject to Article 9, so long as the Securities remain Outstanding, the Company and its
Affiliates may not, directly or indirectly, by a sale or swap of assets, merger, reorganization,
joint venture, lease, license, termination of rights to the Product granted under the LAPA, or any
other transaction or arrangement, sell, transfer, revert, convey or otherwise dispose of their
respective rights in and to the Product to a third party (other than the Company or its Affiliates)
(such transaction, a “Product Disposition Transaction”), unless (a) the transferee acquires all of
the Company’s and its Subsidiaries’ interest in the Product and assumes all of the Company’s
obligations hereunder, (b) the transferee has a corporate credit rating at such time from either
Moody’s Investor Services, Inc. or Standard & Poor’s Ratings Service that is at least as high as
“A-,” “A3” or their equivalent (c) the transferee is either (i) one of the top ten (10) global
pharmaceutical companies, as determined based on annual revenues, or (ii) a global pharmaceutical
or biotechnology company with a market capitalization at such time in excess of fifteen billion
dollars ($15,000,000,000) and a specialty sales and regulatory infrastructure comparable to that
used by the Company to commercialize the Product at such time and (d) the Company certifies to the
Trustee that, to the Company’s knowledge based upon the reasons articulated in such certificate,
the transferee is capable of fulfilling all obligations to be assumed by it under the CVR
Agreement, including the covenant set forth in Section 7.10. For purposes of clarification, this
Section 7.9 shall not apply to sales of Product made by the Company or its Affiliates or ordinary
course licensing arrangements between the Company and its Affiliates, on



39









 







the one hand, and third
party licensees, distributors and contract manufacturers, on the other hand, entered into in the
ordinary course of business for purposes of developing, manufacturing, distributing and selling
Product and for which the gross amounts invoiced for sales of Product by the applicable third party
licensee, distributor or contract manufacturer shall be reflected in Product Sales of the Product
in accordance with the terms of this CVR Agreement.



     SECTION 7.10 Milestones. The Company shall use Diligent Efforts to achieve the Approval Milestone and the Product Sales
Milestones, and shall use commercially reasonable efforts to achieve the Production Milestone on a
timely basis.



     SECTION 7.11 Notice of Breach. The Company shall file with the Trustee written notice of the occurrence of any Breach or other
breach under this CVR Agreement within five (5) Business Days of its becoming aware of any such
Breach or other breach.



     SECTION 7.12 Non-Use of Name. Neither the Trustee nor the Holders shall use the name, trademark, trade name or logo of the
Company, its Affiliates, or their respective employees in any publicity or news release relating to
this CVR Agreement or its subject matter, without the prior express written permission of the
Company, other than (in the case of the name of the Company, its Affiliates, or their respective
employees) with respect to a dispute pursuant to this CVR Agreement between any of the Holders, the
Trustee, the Company or its Affiliates.



ARTICLE 8




REMEDIES OF THE TRUSTEE AND HOLDERS IN THE EVENT OF BREACH



     SECTION 8.1 Breach Defined; Waiver of Breach. “Breach” with respect to the Securities, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Breach and whether it shall be
voluntary or involuntary or be effected by operation of Law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):




     (a) failure to pay all or any part of any CVR Payment after a period of ten (10)
Business Days after such CVR Payment shall become due and payable on a Payment Date or
otherwise; or




     (b) material breach in the performance, or breach in any material respect, of any
covenant or warranty of the Company in respect of the Securities (other than a covenant or
warranty in respect of the Securities, a breach in whose performance or other breach is
elsewhere in this Section 8.1 specifically dealt with), and continuance of such breach for a
period of ninety (90) days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Acting Holders, a
written notice specifying such breach and requiring it to be remedied and stating that such
notice is a “Notice of Breach” hereunder; or




     (c) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar Law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the



40









 







Company or for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed and in effect for
a period of ninety (90) consecutive days; for the avoidance of doubt, a mandataire ad hoc or
a conciliateur or any person having a similar position may be appointed upon request of the
Company, without constituting a Breach under this CVR Agreement; or




     (d) the Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar Law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such Law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or for any substantial part of its
property, or make any general assignment for the benefit of creditors; for the
avoidance of doubt, a mandataire ad hoc or a conciliateur or any person having a similar
position may be appointed upon request of the Company, without constituting a Breach under
this CVR Agreement.



     Except where authorization and/or appearance of each of the Holders is required by applicable
Law, if a Breach described above occurs and is continuing, then either the Trustee by notice in
writing to the Company, or the Trustee upon the written request of the Acting Holders by notice in
writing to the Company and to the Trustee, shall bring suit to protect the rights of the Holders,
including to obtain payment for any amounts then due and payable, which amounts shall bear interest
at the Breach Interest Rate from the date such amounts were due and payable until payment is made
to the Trustee.



     The foregoing provisions, however, are subject to the condition that if, at any time after the
Trustee shall have begun such suit, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all amounts which shall have become due and
payable (with interest upon such overdue amount at the Breach Interest Rate to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred and all
advances made, by the Trustee, and if any and all Breaches under this CVR Agreement shall have been
cured, waived or otherwise remedied as provided herein, then and in every such case Holders of at
least a majority of the Outstanding CVRs, by Act of said Holders delivered to the Company and the
Trustee, may waive all breaches with respect to the Securities, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent breach or shall impair any right
consequent thereof.



     SECTION 8.2 Collection by the Trustee; the Trustee May Prove Payment Obligations. The Company covenants that in the case of any failure to pay all or any part of the Securities
when the same shall have become due and payable, whether at a Payment Date or otherwise, then upon
demand of the Trustee, the Company shall pay to the Trustee for the benefit of the Holders of the
Securities the whole amount that then shall have become due and payable on all Securities (with
interest from the date due and payable to the date of such payment upon the overdue amount at the
Breach Interest Rate); and in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and any



41









 







expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as
a result of its negligence or bad faith.



     The Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this CVR Agreement or in aid of the exercise of any power granted herein, or to
enforce any other remedy.



     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at Law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such Securities and collect in
the manner provided by Law out of the property of the Company or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to be payable.



     In any judicial proceedings relative to the Company or other obligor upon the Securities,
irrespective of whether any amount is then due and payable with respect to the Securities, the
Trustee is authorized:




     (a) to file and prove a claim or claims for the whole amount owing and unpaid in
respect of the Securities, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial proceedings relative to
the Company or other obligor upon the Securities, or to their respective property;




     (b) unless prohibited by and only to the extent required by applicable Law, to vote on
behalf of the Holders in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings; and




     (c) to collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims of the
Holders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Holders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee, except as a result of
its negligence or bad faith, and all other amounts due to the Trustee or any predecessor



42









 







Trustee pursuant to Section 4.7. To the extent that such payment of reasonable
compensation, expenses, disbursements, advances and other amounts out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be secured by a
lien on, and shall be paid out of, any and all distributions, dividends, moneys, securities
and other property which the Holders may be entitled to receive in such proceedings, whether
in liquidation or under any plan of reorganization or safeguard arrangement or otherwise.



     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Holder any plan of reorganization, safeguard
arrangement, adjustment or composition affecting the Securities (including in the context of any
amicable proceeding as mandat ad hoc and conciliation), or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.



     All rights of action and of asserting claims under this CVR Agreement, or under any of the
Securities, may be enforced by the Trustee without the possession of any of the Securities or the
production thereof and any trial or other proceedings instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders.



     In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this CVR Agreement to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders, and it shall not be necessary to make any
Holders of such Securities parties to any such proceedings (unless required by applicable Law).



     SECTION 8.3 Application of Proceeds. Any monies collected by the Trustee pursuant to this Article 8 in respect of any Securities
shall be applied in the following order at the date or dates fixed by the Trustee upon presentation
of the several Securities in respect of which monies have been collected and stamping (or otherwise
noting) thereon the payment in exchange for the presented Securities if only partially paid or upon
surrender thereof if fully paid:




     FIRST: To the payment of costs and expenses in respect of which monies have
been collected, including reasonable compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a
result of its negligence or willful misconduct, and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 4.7;




     SECOND: To the payment of the whole amount then owing and unpaid upon all the
Securities, with interest at the Breach Interest Rate on all such amounts, and in case such
monies shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities, then to the payment of such amounts without preference or priority of any
security over any other Security, ratably to the aggregate of such amounts due and payable;
and



43









 






     THIRD: To the payment of the remainder, if any, to the Company or any other
person lawfully entitled thereto.



     SECTION 8.4 Suits for Enforcement. In case a Breach has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this CVR Agreement by such
appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights (unless authorization and/or appearance of each of the Holders is required by
applicable Law), either at Law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this CVR Agreement or in aid of the exercise
of any power granted in this CVR Agreement or to enforce any other legal or equitable right vested
in the Trustee by this CVR Agreement or by Law.



     SECTION 8.5 Restoration of Rights on Abandonment of Proceedings. In case the Trustee or any Holder shall have proceeded to enforce any right under this CVR
Agreement and such proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to the Trustee or to such Holder, then and in every such case the
Company and the Trustee and the Holders shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the
Holders shall continue as though no such proceedings had been taken.



     SECTION 8.6 Limitations on Suits by Holders. Subject to the right of the Acting Holders under Section 7.6 and the rights of the Holders under
Section 8.7, no Holder of any Security shall have any right by virtue or by availing of any
provision of this CVR Agreement to institute any action or proceeding at Law or in equity or in
bankruptcy or otherwise upon or under or with respect to this CVR Agreement, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written notice of breach
and of the continuance thereof, as hereinbefore provided, and unless also the Acting Holders shall
have made written request upon the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for fifteen (15) days after its receipt of such notice and request shall have failed to
institute any such action or proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 8.9; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every other taker and
Holder and the Trustee, that no one or more Holders of Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this CVR Agreement to effect, disturb
or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right under this CVR
Agreement, except in the manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities. For the protection and enforcement of the provisions of this Section
8.6, each and every Holder and the Trustee shall be entitled to such relief as can be given either
at Law or in equity.



     SECTION 8.7 Unconditional Right of Holders to Institute Certain Suits. Notwithstanding any other provision in this CVR Agreement and any provision of any Security, the
right



44









 







of any Holder of any Security to receive payment of the amounts payable in respect of such
Security on or after the respective due dates expressed in such Security, or to
institute suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.



     SECTION 8.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Breach.



     (a) Except as provided in Section 8.6, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by Law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at Law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



     (b) No delay or omission of the Trustee or of any Holder to exercise any right or power
accruing upon any Breach occurring and continuing as aforesaid shall impair any such right or power
or shall be construed to be a waiver of any such Breach or an acquiescence therein; and, subject to
Section 8.6, every power and remedy given by this CVR Agreement or by Law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.



     SECTION 8.9 Control by Holders.



     (a) The Holders of at least a majority of the Outstanding CVRs shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any power conferred on the Trustee with respect to the Securities by this CVR Agreement;
provided that such direction shall not be otherwise than in accordance with Law and the
provisions of this CVR Agreement; and provided further that (subject to the
provisions of Section 4.1) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive
committee, or a committee of directors or Responsible Officers of the Trustee shall determine that
the action or proceedings so directed would involve the Trustee in personal liability or if the
Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant
to such direction would be unduly prejudicial to the interests of Holders of the Securities not
joining in the giving of said direction.



     (b) Nothing in this CVR Agreement shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee and which is not inconsistent with such direction or
directions by Holders.



     SECTION 8.10 Waiver of Past Breaches.



     (a) In the case of a breach or a Breach specified in clause (b), (c) or (d) of Section 8.1,
the Holders of at least a majority of the Outstanding CVRs may waive any such Breach, and its
consequences except a breach in respect of a covenant or provisions hereof which cannot be modified
or amended without the consent of the Holder of each Security affected. In the case of



45









 







any such
waiver, the Company, the Trustee and the Holders of the Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other breach or impair any right consequent thereon.



     (b) Upon any such waiver, such breach shall cease to exist and be deemed to have been cured
and not to have occurred, and any Breach arising therefrom shall be deemed to have been cured, and
not to have occurred for every purpose of this CVR Agreement; but no such waiver shall extend to
any subsequent or other Breach or other breach of any kind or impair any right consequent thereon.



     SECTION 8.11 The Trustee to Give Notice of Breach, But May Withhold in Certain
Circumstances. The Trustee shall transmit to the Holders, as the names and addresses of such Holders appear on
the Security Register (as provided under Section 313(c) of the Trust Indenture Act, if applicable),
notice by mail of all breaches which have occurred and are known to the Trustee, such notice to be
transmitted within ninety (90) days after the occurrence thereof, unless such breaches shall have
been cured before the giving of such notice (the term “breach” for the purposes of this Section
8.11 being hereby defined to mean any event or condition which is, or with notice or lapse of time
or both would become, a Breach); provided that, except in the case of a failure to pay the
amounts payable in respect of any of the Securities, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee, or a trust committee
of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.



     SECTION 8.12 Right of Court to Require Filing of Undertaking to Pay Costs. All Parties to this CVR Agreement agree, and each Holder of any Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this CVR Agreement or in any suit against the
Trustee for any action taken, suffered or omitted by it as the Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including attorneys’ fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 8.12 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder or group of Holders holding in the aggregate more
than ten percent (10%) of the Securities Outstanding or to any suit instituted by any Holder for
the enforcement of the payment of any Security on or after the due date expressed in such Security.



ARTICLE 9




CONSOLIDATION, MERGER, SALE OR CONVEYANCE



     SECTION 9.1 Company May Consolidate, etc., on Certain Terms. The Company covenants that it shall not merge (fusion) or consolidate with or into any other
Person (other than a wholly-owned subsidiary of the Company), split-off (scission), or sell or
convey all or substantially all of its assets to any Person (including in connection with a
spin-off transaction (apport partiel d’actif)), unless (a) the Company shall be the continuing
Person, or the successor Person or the Person which acquires by sale or conveyance all or
substantially all the assets of



46









 







the Company (or, in the case of a split-off (scission) or spin-off
(apport partiel d’actif), the Person who has received the largest portion of the assets relating to
the Product) shall be a Person organized under the Laws of the United States of America or any
State thereof or of France or of any other member of the European Union and shall expressly assume
by an instrument supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the Securities, according to their tenor, and the
due and punctual performance and observance of all of the covenants and conditions of this CVR
Agreement to be performed or observed by the Company, including, without limitation, the provisions
concerning governing law and consent to jurisdiction set forth in Section 1.10 hereof, (b) the
Company, or such successor Person, as the case may be, shall not, immediately after such merger or
consolidation, split-off, or such sale or conveyance, be in breach in the performance of any such
covenant or condition and (c) in the case of a split-off or spin-off, (i) such successor Person
shall have a corporate credit rating after the split-off or spin-off transaction from either
Moody’s Investor Services, Inc. or Standard & Poor’s Ratings Service that is at least as high as
“A-,” “A3” or their equivalent and (ii) the Company shall have certified to the Trustee that, to
the Company’s knowledge based upon the reasons articulated in such certificate, such successor
Person is capable of fulfilling all obligations to be assumed by it under the CVR Agreement,
including the covenant set forth in Section 7.10.



     SECTION 9.2 Successor Person Substituted.



     (a) In case of any such consolidation, merger, split-off, spin-off, sale or conveyance, and
following such an assumption by the successor Person, such successor Person shall succeed to and be
substituted for the Company with the same effect as if it had been named herein. Such successor
Person may cause to be signed, and may issue either in its own name or in the name of the Company
prior to such succession any or all of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms, conditions and
limitations in this CVR Agreement prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered to the Trustee for authentication,
and any Securities which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this CVR Agreement as the Securities
theretofore or thereafter issued in accordance with the terms of this CVR Agreement as though
all of such Securities had been issued at the date of the execution hereof.



     (b) In case of any such consolidation, merger, sale or conveyance, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be issued as may be
appropriate. The successor entity to such consolidation, merger, sale or conveyance may satisfy
the obligations of Section 5.4(a)(i) and (ii) of this CVR Agreement by providing copies of such
successor entity’s Exchange Act Documents in the case of Section 5.4(a)(i) or such successor
entity’s financial information in the case of Section 5.4(a)(ii).



     (c) In the event of any such sale, transfer or conveyance (other than a conveyance by way of
lease) the Company or any Person which shall theretofore have become such in the manner described
in this Article 9 shall be discharged from all obligations and covenants under this CVR Agreement
and the Securities and may be liquidated and dissolved.



47









 





     SECTION 9.3 Opinion of Counsel to the Trustee. The Trustee, subject to the provisions of Sections 4.1 and 4.2, shall receive an Officer’s
Certificate and Opinion of Counsel, prepared in accordance with Sections 1.2 and 1.3, as conclusive
evidence that any such consolidation, merger, sale or conveyance, and any such assumption, and any
such liquidation or dissolution, complies with the applicable provisions of this CVR Agreement, and
if a supplemental agreement is required in connection with such transaction, such supplemental
agreement complies with this Article 9 and that there has been compliance with all conditions
precedent herein provided for or relating to such transaction.



     SECTION 9.4 Successors. All covenants, provisions and agreements in this CVR Agreement by or for the benefit of the
Company, the Trustee or the Holders shall bind and inure to the benefit of their respective
successors, assigns, heirs and personal representatives, whether so expressed or not. The Company
may assign this CVR Agreement without the prior written consent of the other Parties to this CVR
Agreement to one or more of its direct or indirect Subsidiaries, provided, however,
that in the event of any such assignment the Company shall remain subject to its obligations and
covenants hereunder, including, but not limited to, its obligation to make any Product Sales
Milestone Payments, the Approval Milestone Payment and the Production Milestone Payment.



ARTICLE 10




PURCHASE OF SECURITIES UPON CVR FAILURE EVENT



     SECTION 10.1 Notice to Trustee. In the event that a Failure Purchase Eligibility Date has occurred and the Company elects to
purchase the Securities pursuant to the provisions of Section 10.5 hereof (a “Failure
Purchase”), it shall furnish to the Trustee, at least thirty (30) days (unless a shorter period
shall be agreed to by the Trustee) but not more than sixty (60) days before the date on which the
Company proposes to consummate the Failure Purchase (any such date, a “Failure Purchase
Date”) (but in any event prior to the notice provided pursuant to Section 10.2 hereof), an
Officer’s Certificate (a
“Failure Purchase Offer”) setting forth (i) the clause of this CVR Agreement pursuant to
which the Failure Purchase shall occur, (ii) the Failure Purchase Date, and (iii) the Failure
Purchase Price, determined in accordance with Section 10.5 hereof.



     SECTION 10.2 Notice of Failure Purchase. At least thirty (30) days but not more than sixty (60) days before a Failure Purchase Date, the
Company shall mail or cause to be mailed, a notice of Failure Purchase to each Holder at its
registered address (the “Failure Purchase Notice”) and shall publicly disclose the election
of the Failure Purchase and the information required to be contained in the Failure Purchase Notice
pursuant to this Section 10.2. The Failure Purchase Notice shall identify the number of Securities
Outstanding and shall state:



     (a) the Failure Purchase Date;



     (b) the Failure Purchase Price;



     (c) the name and address of the paying agent;



48









 





     (d) that Securities must be surrendered to the Paying Agent to collect the Failure Purchase
Price;



     (e) that, unless the Company fails to make payment of the Failure Purchase Price, all right,
title and interest in and to the Securities and any CVR Payment or any other amounts due under this
CVR Agreement, if any, on Securities called for Failure Purchase ceases to accrue on and after the
Failure Purchase Date;



     (f) the clause of this CVR Agreement pursuant to which the Failure Purchase shall occur; and



     (g) that no representation is made as to the correctness or accuracy of the CUSIP and ISIN
number, if any, listed in such notice or printed on the Securities.



     At the Company’s request, the Trustee shall give the Failure Purchase Notice in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee at
least forty five (45) days (unless a shorter period shall be agreed to by the Trustee) but not more
than sixty (60) days prior to the Failure Purchase Date, an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to
be stated in such notice as provided in the preceding paragraph.



     SECTION 10.3 Effect of Failure Purchase Notice. Once the Failure Purchase Notice is mailed in accordance with Section 10.2 hereof, the
Securities shall become irrevocably due and payable on the Failure Purchase Date at the Failure
Purchase Price. A Failure Purchase Notice shall be deemed to be given when mailed, whether or not
the Holder receives the notice. In any event, failure to give a particular Holder his or her
Failure Purchase Notice, or any defect in such notice, shall not affect the validity of the
proceedings for the Failure Purchase.



     SECTION 10.4 Deposit of Failure Purchase Price. On or one (1) Business Day prior to the Failure Purchase Date, the Company shall deposit with
the Trustee or with the paying agent (if different from the Trustee) money sufficient to pay the
Failure Purchase Price of all Securities Outstanding on that date. The Trustee or the paying agent
shall promptly return to the Company any money deposited with the Trustee or the paying agent by
the Company in excess of the amounts necessary to pay the Failure Purchase Price of all Securities
Outstanding.



     If the Company complies with the provisions of the preceding paragraph, on and after the
Failure Purchase Date, all right, title and interest of a Holder to any CVR Payment, if any, shall
cease to accrue on the Securities. If any Security called for Failure Purchase shall not be so paid
upon surrender for Failure Purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid Failure Purchase Price from the Failure
Purchase Date, until such Failure Purchase Price is paid at the Shortfall Interest Rate.



     SECTION 10.5 Failure Purchase by the Company. The Company may, for a period of sixty (60) days after any Failure Purchase Eligibility Date,
issue the Failure Purchase Notice in accordance with Section 10.2. Upon issuance of the Failure
Purchase Notice and in compliance with the other provisions of this Article 10, the Company shall,
on the Failure Purchase Date specified in such Failure Purchase Notice, purchase and cancel all
(but not less than all) of the outstanding Securities at a cash price equal to the volume weighted
average price paid per



49









 







Security for all Securities traded over the forty-five (45) trading days
prior to the fifth (5th) trading day prior to the date of the Failure Purchase Notice (the
“Failure Purchase Price”). If the Company has not issued the Failure Purchase Notice
within such thirty (30) day period after the occurrence of a Failure Purchase Eligibility Date, it
shall not be entitled to issue a Failure Purchase Notice and purchase and cancel the Securities
until the next instance in which a Failure Purchase Eligibility Date occurs.



50









 





     IN WITNESS WHEREOF, the Parties hereto have caused this CVR Agreement to be duly executed, all
as of the day and year first above written.



	 	 	 	 	 	 	 

	 	 	SANOFI-AVENTIS	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	[•],	 	 	 	 
	 	 	as the Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 








51









 








ANNEX A




SANOFI-AVENTIS



	 	 	 	 	 

	No.

	 	Certificate for
	 	Contingent Value Rights






     This certifies that , or registered assigns (the “Holder”), is the registered holder
of the number of Contingent Value Rights (“CVRs” or “Securities”) set forth above.
Each CVR entitles the Holder, subject to the provisions contained herein and in the CVR Agreement
referred to on the reverse hereof, to payments from Sanofi-Aventis, a French société anonyme (the
“Company”), in the amounts and in the forms determined pursuant to the provisions set forth
on the reverse hereof and as more fully described in the CVR Agreement referred to on the reverse
hereof. Such payments shall be made on a Payment Date, as defined in the CVR Agreement referred to
on the reverse hereof.



     Payment of any amounts pursuant to this CVR Certificate shall be made only to the registered
Holder (as defined in the CVR Agreement) of this CVR Certificate. Such payment shall be made in
the Borough of Manhattan, The City of New York, or at any other office or agency maintained by the
Company outside France for such purpose, in such coin or currency of the United States of America
as at the time is legal tender for the payment of public and private debts; provided,
however, the Company may pay such amounts by wire transfer or check payable in such money.
[TRUSTEE] has been initially appointed as Paying Agent at its office or agency in the Borough of
Manhattan, The City of New York.



     Reference is hereby made to the further provisions of this CVR Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.



     Unless the certificate of authentication hereon has been duly executed by the Trustee referred
to on the reverse hereof by manual signature, this CVR Certificate shall not be entitled to any
benefit under the CVR Agreement, or be valid or obligatory for any purpose.



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	[•]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:




	 	 	 	 	 

	Attest:
	 	 	 	 
	 

	 	 

Authorized Signature
	 	 






A-1 









 








[Form of Reverse of CVR Certificate]




     1. This CVR Certificate is issued under and in accordance with the Contingent Value Rights
Agreement, dated as of [•], 2011 (the “CVR Agreement”), between the Company and [•], a
national banking association, as trustee (the “Trustee,” which term includes any successor
Trustee under the CVR Agreement), and is subject to the terms and provisions contained in the CVR
Agreement, to all of which terms and provisions the Holder of this CVR Certificate consents by
acceptance hereof. The CVR Agreement is hereby incorporated herein by reference and made a part
hereof. Reference is hereby made to the CVR Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the CVRs. All capitalized terms used in this CVR Certificate without
definition shall have the respective meanings ascribed to them in the CVR Agreement. Copies of the
CVR Agreement can be obtained by contacting the Trustee.



     2. In the event of any conflict between this CVR Certificate and the CVR Agreement, the CVR
Agreement shall govern and prevail.



     3. Subject to the terms and conditions of the CVR Agreement, on any Product Sales Milestone
Payment Date, the Company shall pay to the Trustee, for the benefit of the Holder hereof as of the
applicable record date, for each CVR represented hereby, the Product Sales Milestone Payment with
respect to such Product Sales Milestone Payment Date.



     4. Subject to the terms and conditions of the CVR Agreement, on the Approval Milestone Payment
Date, the Company shall pay to the Trustee, for the benefit of the Holder hereof as of the
applicable record date, for each CVR represented hereby, the Approval Milestone Payment.



     5. Subject to the terms and conditions of the CVR Agreement, on the Production Milestone
Payment Date, the Company shall pay to the Trustee, for the benefit of the Holder hereof as of the
applicable record date, for each CVR represented hereby, the Production Milestone Payment.



     6. Each CVR Payment, if any, and interest thereon, if any, shall be payable by the Company in
such coin or currency of the United States of America as at the time is legal tender for the
payment of public and private debts; provided, however, the Company may pay such
amounts by its check or wire transfer payable in such money. [TRUSTEE] has been initially
appointed as Paying Agent at its office or agency in the Borough of Manhattan, The City of New
York.



     7. If a Breach occurs and is continuing, either the Trustee may or the Acting Holders, by
notice to the Company and to the Trustee shall bring suit in accordance with the terms and
conditions of the CVR Agreement to protect the rights of the Holders, including to obtain payment
of all amounts then due and payable, with interest at the Breach Interest Rate from the date of the
Breach through the date payment is made or duly provided for.



     8. No reference herein to the CVR Agreement and no provision of this CVR Certificate or of the
CVR Agreement shall alter or impair the obligation of the Company, which



 









 





is absolute and unconditional, to pay any amounts determined pursuant to the terms hereof and
of the CVR Agreement at the times, place and amount, and in the manner, herein prescribed.




     9. As provided in the CVR Agreement and subject to certain limitations therein set forth, the
transfer of the CVRs represented by this CVR Certificate is registrable on the Security Register,
upon surrender of this CVR Certificate for registration of transfer at the office or agency of the
Company maintained for such purpose in the Borough of Manhattan, The City of New York, accompanied
by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new CVR Certificates, for the same amount of CVRs, shall be issued to the designated
transferee or transferees. The Company hereby initially designates the office of [TRUSTEE] at [•]
as the office for registration of transfer of this CVR Certificate.



     10. As provided in the CVR Agreement and subject to certain limitations therein set forth,
this CVR Certificate is exchangeable for one or more CVR Certificates representing the same number
of CVRs as represented by this CVR Certificate as requested by the Holder surrendering the same.



     11. No service charge shall be made for any registration of transfer or exchange of CVRs, but
the Company may require payment of a sum sufficient to cover any documentary, stamp or similar tax
or other similar governmental charge payable in connection with any registration of transfer or
exchange of Securities, other than (i) exchanges pursuant to Sections 3.4, 3.6 or 6.6 of the CVR
Agreement not involving any transfer or (ii) transfers pursuant to Article 10 of the CVR Agreement.



     12. Prior to the time of due presentment of this CVR Certificate for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose
name this CVR Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Trustee nor any agent shall be affected by notice to the contrary.



     13. Neither the Company nor the Trustee has any duty or obligation to the Holder of this CVR
Certificate, except as expressly set forth herein or in the CVR Agreement.



     14. As provided in the CVR Agreement and subject to certain limitations therein set forth, the
rights of the Holder of this CVR Certificate shall terminate on the Termination Date.



     15. Purchase of Securities Upon CVR Failure Event.


          a. Notice to Trustee. In the event a Failure Purchase Eligibility Date has occurred
and the Company elects to purchase the Securities pursuant to the provisions of Section 10.5 of the
CVR Agreement (a “Failure Purchase”), it shall furnish to the Trustee, at least thirty (30)
days (unless a shorter period shall be agreed to by the Trustee) but not more than sixty (60) days
before the date on which the Company proposes to consummate the Failure Purchase (any such date,
the “Failure Purchase Date”) (but in any event prior to the notice provided pursuant to
Section 10.2 of the CVR Agreement), an Officer’s Certificate (a “Failure Purchase Offer”)
setting forth (i) the clause of the CVR Agreement pursuant to which the Failure Purchase shall
occur, (ii) the Failure Purchase Date, and (iii) the Failure Purchase Price, determined in
accordance with Section 10.5 of the CVR Agreement.



2









 







          b. Notice of Failure Purchase. At least thirty (30) days but not more than sixty (60)
days before a Failure Purchase Date, the Company shall mail or cause to be mailed, by first class
mail, a notice of Failure Purchase to each Holder at its registered address(the “Failure
Purchase Notice”) and shall publicly disclose the election of the Failure Purchase and the
information required to be contained in the Failure Purchase Notice pursuant to Section 10.2 of the
CVR Agreement. The notice (the “Failure Purchase Notice”) shall identify the number of
Securities Outstanding and shall state:




	 	(i)	 	the Failure Purchase Date;






	 	(ii)	 	the Failure Purchase Price;






	 	(iii)	 	the name and address of the paying agent;






	 	(iv)	 	that Securities must be surrendered to the
Paying Agent to collect the Failure Purchase Price;






	 	(v)	 	that, unless the Company fails to make payment
on the Failure Purchase Price, all right, title and interest in and to
the Securities and any CVR Payment or any other amounts due under the
CVR Agreement, if any, on Securities called for Failure Purchase ceases
to accrue on and after the Failure Purchase Date;






	 	(vi)	 	the clause of the CVR Agreement pursuant to
which the Failure Purchase shall occur; and






	 	(vii)	 	that no representation is made as to the
correctness or accuracy of the CUSIP and ISIN number, if any, listed in
such notice or printed on the Securities.





At the Company’s request, the Trustee shall give the Failure Purchase Notice in the Company’s name
and at its expense; provided, however, that the Company shall have delivered to the Trustee at
least forty five (45) days (unless a shorter period shall be agreed to by the Trustee) but not more
than sixty (60) days prior to the Failure Purchase Date, an Officer’s Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.



          c. Effect of Failure Purchase Notice. Once the Failure Purchase Notice is mailed in
accordance with Section 10.2 of the CVR Agreement, the Securities shall become irrevocably due and
payable on the Failure Purchase Date at the Failure Purchase Price. A Failure Purchase Notice shall
be deemed to be given when mailed, whether or not the Holder receives the notice. In any event,
failure to give a particular Holder his or her Failure Purchase Notice, or any defect in such
Failure Purchase Notice, shall not affect the validity of the proceedings for the Failure Purchase.


          d. Deposit of Failure Purchase Price. On or one (1) Business Day prior to the Failure
Purchase Date, the Company shall deposit with the Trustee or with the paying agent (if different
from the Trustee) money sufficient to pay the Failure Purchase Price of all Securities



3









 








Outstanding on that date. The Trustee or the paying agent shall promptly return to the Company
any money deposited with the Trustee or the paying agent by the Company in excess of the amounts
necessary to pay the Failure Purchase Price of all Securities Outstanding.



          If the Company complies with the provisions of the preceding paragraph, on and after the
Failure Purchase Date, all right, title and interest of a Holder to any CVR Payment, if any, shall
cease to accrue on the Securities called for. If any Security called for Failure Purchase shall not
be so paid upon surrender for Failure Purchase because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid Failure Purchase Price from the
Failure Purchase Date until such Failure Purchase Price is paid at the Shortfall Interest Rate.


          e. Failure Purchase by the Company. The Company may, for a period of sixty (60) days
after any Failure Purchase Eligibility Date, issue the Failure Purchase Notice in accordance with
Section 10.2 of the CVR Agreement. Upon issuance of the Failure Purchase Notice and in compliance
with the other provisions of Article 10 of the CVR Agreement, the Company shall, on the Failure
Purchase Date specified in such Failure Purchase Notice, purchase and cancel all (but not less than
all) of the outstanding Securities at a cash price equal to the volume weighted average price paid
per Security for all Securities traded over the forty-five (45) trading days prior to the fifth
(5th) trading day prior to the date of the Failure Purchase Notice (the “Failure Purchase
Price”). If the Company has not issued the Failure Purchase Notice within such thirty (30) day
period after the occurrence of a Failure Purchase Eligibility Date, it shall not be entitled to
issue a Failure Purchase Notice and purchase and cancel the Securities until the next instance in
which a Failure Purchase Eligibility Date occurs.



     16. Governing Law; Jurisdiction; Venue. THIS CVR CERTIFICATE AND THE CVR AGREEMENT AND ALL
CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON, ARISE OUT OF OR
RELATE TO THIS CVR CERTIFICATE AND THE CVR AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE
OF THIS CVR CERTIFICATE AND THE CVR AGREEMENT (INCLUDING ANY CLAIM OR CAUSE OF ACTION BASED UPON,
ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION WITH THIS CVR
CERTIFICATE AND THE CVR AGREEMENT OR AS AN INDUCEMENT TO ACCEPT THIS CVR CERTIFICATE) OR THE
SECURITIES, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. EACH OF THE COMPANY, THE TRUSTEE
AND EACH OF THE HOLDERS BY THEIR ACCEPTANCE OF THE SECURITIES, HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON,
ARISE OUT OF OR RELATE TO THIS CVR CERTIFICATE AND THE CVR AGREEMENT, OR THE NEGOTIATION, EXECUTION
OR PERFORMANCE OF THIS CVR CERTIFICATE AND THE CVR AGREEMENT (INCLUDING ANY CLAIM OR



4









 





CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE
IN OR IN CONNECTION WITH THIS CVR CERTIFICATE AND THE CVR AGREEMENT OR AS AN INDUCEMENT TO ACCEPT
THIS CVR CERTIFICATE), OR THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.






5









 








TRUSTEE’S CERTIFICATE OF AUTHENTICATION




     This is one of the CVR Certificates referred to in the within-mentioned CVR Agreement.



	 	 	 	 	 
	 	[•],

as the Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Dated: