MONETARY REMEDY), WILL BE ENTITLED TO
SPECIFIC PERFORMANCE OF ITS RIGHTS UNDER THIS AGREEMENT.
THE COMPANY AND EACH
HOLDER OF REGISTRABLE SECURITIES AGREE THAT MONETARY DAMAGES WOULD NOT BE
ADEQUATE COMPENSATION FOR ANY LOSS INCURRED BY REASON OF A BREACH BY IT OF ANY
OF THE PROVISIONS OF THIS AGREEMENT AND HEREBY FURTHER AGREE THAT, IN THE EVENT
OF ANY ACTION FOR SPECIFIC PERFORMANCE IN RESPECT OF SUCH BREACH, IT SHALL WAIVE
THE DEFENSE THAT A REMEDY AT LAW WOULD BE ADEQUATE.
(K)
APPROVAL OF HOLDERS.
WHENEVER THE CONSENT
OR APPROVAL OF HOLDERS OF A SPECIFIED PERCENTAGE OF REGISTRABLE SECURITIES IS
REQUIRED HEREUNDER, REGISTRABLE SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES
(AS SUCH TERM IS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) (OTHER THAN THE
INITIAL PURCHASERS OR SUBSEQUENT HOLDERS IF SUCH SUBSEQUENT HOLDERS ARE DEEMED
TO BE SUCH AFFILIATES SOLELY BY REASON OF THEIR HOLDINGS OF SUCH REGISTRABLE
SECURITIES) SHALL NOT BE COUNTED IN DETERMINING WHETHER SUCH CONSENT OR APPROVAL
WAS GIVEN BY THE HOLDERS OF SUCH REQUIRED PERCENTAGE.
(L)
ENTIRE AGREEMENT.
THIS AGREEMENT IS
INTENDED BY THE PARTIES AS A FINAL EXPRESSION OF THEIR AGREEMENT AND IS INTENDED
TO BE A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT AND UNDERSTANDING OF
THE PARTIES HERETO IN RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN AND THE
REGISTRATION RIGHTS GRANTED BY THE COMPANY WITH RESPECT TO THE REGISTRABLE
SECURITIES.
EXCEPT AS PROVIDED IN THE PURCHASE AGREEMENT, THERE ARE NO
RESTRICTIONS, PROMISES, WARRANTIES OR UNDERTAKINGS, OTHER THAN THOSE SET FORTH
OR REFERRED TO HEREIN, WITH RESPECT TO THE REGISTRATION RIGHTS GRANTED BY THE
COMPANY WITH RESPECT TO THE REGISTRABLE SECURITIES.
THIS AGREEMENT SUPERSEDES
ALL PRIOR AGREEMENTS AND UNDERTAKINGS AMONG THE PARTIES WITH RESPECT TO SUCH
REGISTRATION RIGHTS.
NO PARTY HERETO SHALL HAVE ANY RIGHTS, DUTIES OR
OBLIGATIONS OTHER THAN THOSE SPECIFICALLY SET FORTH IN THIS AGREEMENT.
14
(M)
TERMINATION.
THIS AGREEMENT AND THE
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL TERMINATE UPON THE END OF THE
EFFECTIVENESS PERIOD, EXCEPT FOR ANY LIABILITIES OR OBLIGATIONS UNDER SECTION 6
OR 7 HEREOF AND THE OBLIGATIONS TO MAKE PAYMENTS OF AND PROVIDE FOR ADDITIONAL
INTEREST UNDER SECTION 3 HEREOF TO THE EXTENT SUCH ADDITIONAL INTEREST ACCRUES
PRIOR TO THE END OF THE EFFECTIVENESS PERIOD, EACH OF WHICH SHALL REMAIN IN
EFFECT IN ACCORDANCE WITH ITS TERMS.
[Signature Page Follows]
15
Please confirm that the foregoing correctly sets forth the agreement among the
Company and you.
Very truly yours,
EPIX MEDICAL, INC.
By:
/s/ Peyton J. Marshall
Name:
Peyton J. Marshall
Title:
CFO
Accepted as of
the date first above written:
SG COWEN & CO., LLC
NEEDHAM & COMPANY, INC.
WELLS FARGO SECURITIES, LLC
WR HAMBRECHT + CO. LLC
As representatives of the Initial Purchasers
By:
SG COWEN & CO., LLC
/s/ John Mosler
Name:
John Mosler
Title:
MD
Registration Rights Agreement Signature Page