exv4w3



 





Exhibit 4.3




Execution Copy




REGISTRATION RIGHTS AGREEMENT




Dated as of December 20, 2006




by and among




UCI Holdco, Inc.




as the Company




and




Lehman Brothers Inc.

and

Goldman, Sachs & Co.




as the Initial Purchasers










 



 


          This Registration Rights Agreement (this “Agreement”) is dated as of December 20, 2006, by and
between UCI Holdco, Inc., a Delaware corporation (the “Company”) and Lehman Brothers Inc. and
Goldman, Sachs & Co. (each an “Initial Purchaser” and, collectively, the “Initial Purchasers”),
each of whom has agreed to purchase the Company’s Floating Rate Senior PIK Notes due 2013 (the
“Notes”) pursuant to the Purchase Agreement (as defined below).




          This Agreement is made pursuant to the Purchase Agreement, dated December 15, 2006 (the
“Purchase Agreement”), by and between the Company and the Initial Purchasers. In order to induce
the Initial Purchasers to purchase the Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 7 of the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in
the Indenture, dated the date hereof (the “Indenture”), between the Company and Wells Fargo Bank,
National Association, as trustee (the “Trustee”), relating to the Notes and the Exchange Notes (as
defined below).




          The parties hereby agree as follows:




SECTION 1. DEFINITIONS




          As used in this Agreement, the following capitalized terms shall have the following meanings:




          Act: The U.S. Securities Act of 1933, as amended.




          Additional Interest: As defined in Section 5 hereof.




          Affiliate: As defined in Rule 144 of the Act.




          Broker-Dealer: Any broker or dealer registered under the Exchange Act.




          Business Day: Any day other than a Saturday, a Sunday or a day on which banking institutions
in the City of New York are authorized or obligated by law, regulation or executive order to remain
closed. If the time to perform any action hereunder falls on a day that is not a Business Day,
such time will be extended to the next Business Day and no Additional Interest shall accrue on such
payment for the intervening period.




          Certificated Securities: Definitive Notes, as defined in the Indenture.




          Closing Date: The date of this Agreement.




          Commission: The U.S. Securities and Exchange Commission.




          Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (a) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement









 



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continuously effective and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the Company to the
Registrar under the Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Notes tendered by Holders thereof pursuant to the Exchange Offer.




          Consummation Deadline: As defined in Section 3(a) hereof.




          Exchange Act: The U.S. Securities Exchange Act of 1934.




          Exchange Notes: The Company’s Floating Rate Senior PIK Notes due 2013, registered under the
Act, to be issued pursuant to the Indenture (a) in the Exchange Offer or (b) as contemplated by
Section 4 hereof.




          Exchange Offer: The exchange and issuance by the Company of a principal amount of Exchange
Notes (which shall be registered pursuant to the Exchange Offer Registration Statement) equal to
the outstanding principal amount of Notes that are tendered by such Holders in connection with such
exchange and issuance.




          Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.




          Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Notes to
certain “qualified institutional buyers,” as such term is defined in Rule 144A under the Act, and
certain persons who are not U.S. Persons (as defined in Regulation S) in offshore transactions
pursuant to Regulation S under the Act.




          Free Writing Prospectus: Each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in
connection with the sale of the Notes or the Exchange Notes.




          Holders: As defined in Section 2 hereof.




          Interest Payment Date: As defined in the Notes and the Exchange Notes.




          Person: As defined in the Indenture.




          Prospectus: The prospectus included in a Registration Statement at the time such Registration
Statement is declared effective, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.




          Recommencement Date: As defined in Section 6(e) hereof.




          Registration Default: As defined in Section 5 hereof.




          Registration Period: As defined in Section 3(c) hereof.










 



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          Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Notes and any related Subsidiary Guarantees pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case (i) that is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by reference therein.




          Regulation S: Regulation S promulgated under the Act.




          Rule 144: Rule 144 promulgated under the Act.




          Shelf Effectiveness Deadline: As defined in Section 4(a) hereof.




          Shelf Registration Statement: As defined in Section 4(a) hereof.




          Shelf Period: As defined in Section 4(a) hereof.




          Subsidiary Guarantees: Guarantees of the Notes and Exchange Notes by Guarantors under the
Indenture, as amended from time to time.




          Suspension Notice: As defined in Section 6(e) hereof.




          TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as amended, or
any successor statute and the rules and regulations promulgated thereunder.




          Transfer Restricted Securities: (a) Each Note (including additional PIK Notes) and any
related Subsidiary Guarantees, until the earliest to occur of (i) the date on which such Note has
been exchanged by a Person other than a Broker-Dealer for an Exchange Note in the Exchange Offer
and entitled to be resold to the public by such Person without complying with the prospectus
delivery requirements of the Act, (ii) the date on which such Note has been effectively registered
under the Act and disposed of in accordance with the Shelf Registration Statement, or (iii) the
date on which such Note is eligible to be distributed to the public pursuant to Rule 144(k) under
the Act, and (b) each Exchange Note and any related Subsidiary Guarantees acquired by a
Broker-Dealer in the Exchange Offer of a Note for such Exchange Note, until the date on which such
Exchange Note is sold to a purchaser who receives from such Broker-Dealer on or prior to the date
of such sale a copy of the Prospectus contained in the Exchange Offer Registration Statement.




SECTION 2. HOLDERS




          A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.




SECTION 3. REGISTERED EXCHANGE OFFER




          (a) Unless the Exchange Offer shall not be permitted by applicable federal law or Commission
policy (after the procedures set forth in Section 6(a)(i) below have been









 



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complied with), the Company shall (i) cause the Exchange Offer Registration Statement to be
filed with the Commission, (ii) use its reasonable best efforts to cause such Exchange Offer
Registration Statement to become effective, (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order
to cause it to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification of the Exchange
Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (iv) commence and use its reasonable best efforts to
Consummate the Exchange Offer on or prior to the date that is 420 days after the Closing Date (the
“Consummation Deadline”). The Exchange Offer shall be on the appropriate form permitting (I)
registration of the Exchange Notes to be offered in exchange for the Transfer Restricted Securities
and (II) resales of Exchange Notes by Broker-Dealers that tendered into the Exchange Offer Notes
that such Broker-Dealers acquired for their own account as a result of market-making activities or
other trading activities (other than Notes acquired directly from the Company or any its
Affiliates) as contemplated by Section 3(c) below.




          (b) The Company shall use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange Offer open for a period of not
less than the minimum period required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event shall such period be less than
20 Business Days. The Company shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.




          (c) The Company shall include a “Plan of Distribution” section in the Prospectus contained in
the Exchange Offer Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such Broker-Dealer as a result
of market-making activities or other trading activities (other than Notes acquired directly from
the Company or any Affiliate of the Company), may exchange such Transfer Restricted Securities
pursuant to the Exchange Offer. Such “Plan of Distribution” section shall also contain all other
information with respect to such sales by such Broker-Dealers that the Commission may require in
order to permit such sales pursuant thereto, but such “Plan of Distribution” shall not name any
such Broker-Dealer or disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by the Commission as a result of a change in policy,
rules or regulations after the date of this Agreement. See the Shearman & Sterling
no-action letter dated July 2, 1993.




          Because such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with
its initial sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer, the
Company shall permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement. To the extent
necessary to ensure that the Prospectus contained in the Exchange Offer Registration Statement is
available for sales of Exchange Notes by Broker-Dealers, the Company agrees to use its reasonable
best efforts to keep the Exchange Offer Registration Statement continuously effective,
supplemented, amended and current as required by and subject









 



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to the provisions of Sections 6(a) and 6(c) hereof and in conformity with the requirements of
this Agreement, the Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period of one year from the date on which the Exchange Offer Registration
Statement is declared effective or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold pursuant thereto (the
“Registration Period”). The Company shall provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers, promptly upon request at any time during such one-year period in
order to facilitate resales.




SECTION 4. SHELF REGISTRATION




          (a) Shelf Registration. If (i) the Exchange Offer is not permitted by applicable law
or Commission policy (after the Company has complied with the procedures set forth in Section
6(a)(i) hereof) or (ii) if any Holder of Transfer Restricted Securities shall notify the Company
prior to the 20th Business Day following the Consummation of the Exchange Offer that (A) such
Holder was prohibited by applicable law or Commission policy from participating in the Exchange
Offer or (B) such Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such Holder or (C) such
Holder is a Broker-Dealer and holds Notes acquired directly from the Company or any of its
Affiliates, then the Company shall use its reasonable best efforts to:




          (I) cause to be filed a shelf registration statement pursuant to Rule 415 under the Act (which
may be an amendment to the Exchange Offer Registration Statement (the “Shelf Registration
Statement”)), relating to all Transfer Restricted Securities; and




          (II) cause such Shelf Registration Statement to become effective at the earliest possible
time, but in no event later than on or prior to the date that is 420 days after the Closing Date
(such later date, the “Shelf Effectiveness Deadline”).




          If, after the Company has filed an Exchange Offer Registration Statement that satisfies the
requirements of Section 3(a) above, the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under applicable federal
law or Commission policy (i.e., clause (a)(i) of this Section), then the filing of the Exchange
Offer Registration Statement shall be deemed to satisfy the requirements of clause (I) above;
provided that, in such event, the Company shall remain obligated to meet the Shelf Effectiveness
Deadline set forth in clause (II) above.




          To the extent necessary to ensure that the Shelf Registration Statement is available for sales
of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section
4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company shall use its reasonable best efforts to keep any Shelf Registration Statement
required by this Section 4(a) continuously effective, supplemented, amended and current as required
by and subject to the provisions of Sections 6(b) hereof and 6(c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of at least two years (as extended pursuant to Section
6(c)(i)hereof) following the Closing Date, or such shorter









 



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period as will terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto (the “Shelf Period”).




          (b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 20 days after receipt of a request
therefor, such information as the Company may reasonably request in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein, including, but not
limited to, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the
Act for use in connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall be entitled to
Additional Interest pursuant to Section 5 hereof unless and until such Holder shall have provided
all such information. By its acceptance of Transfer Restricted Securities, each Holder agrees to
promptly furnish additional information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.




SECTION 5. ADDITIONAL INTEREST




          If (a) the Exchange Offer has not been Consummated on or prior to the Consummation Deadline,
(b) the Shelf Registration Statement has not been declared effective by the Commission on or prior
to the Shelf Effectiveness Deadline or (c) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose, during the Registration Period or Shelf Period, as applicable, without being
succeeded within two Business Days by a post-effective amendment to such Registration Statement
that cures such failure and that is itself declared effective within five Business Days of filing
such post-effective amendment to such Registration Statement (each such event referred to in
clauses (a) through (d), a “Registration Default”; except as permitted in paragraph (b), such
period of time during which any such Registration Statement is not effective or any such
Registration Statement or the related Prospectus is not usable being referred to as a “Blackout
Period”), then the Company hereby agrees to pay to each Holder of Transfer Restricted Securities
affected thereby Additional Interest in an amount equal to $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities held by such Holder for the first 90-day period
immediately following the occurrence of such Registration Default. The amount of the Additional
Interest shall increase by an additional $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum amount of Additional Interest of $.50 per week per $1,000 in
principal amount of Transfer Restricted Securities; provided that the Company shall in no event be
required to pay Additional Interest for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (i) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of
clause (a) above, (ii) upon the effectiveness of the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement), in the case of clause (b) above, (iii) upon
Consummation of the Exchange Offer, in the case of clause (c) above, or (iv) upon the filing of a
post-effective amendment to the Registration Statement or an additional Registration Statement that
causes the









 



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Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable, in the case of clause (d) above, the
Additional Interest payable with respect to the Transfer Restricted Securities as a result of such
clause (a), (b), (c) or (d), as applicable, shall cease on the date of such cure and the interest
rate on such Transfer Restricted Securities will revert to the interest rate on such Transfer
Restricted Securities prior to the applicable Registration Default.




          A Registration Default referred to in clause (d) above shall be deemed not to have occurred
and be continuing in respect of a Registration Statement or the related Prospectus if (A) the
Blackout Period has occurred solely as a result of (x) the filing of a post-effective amendment to
such Registration Statement to incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related Prospectus or (y) the occurrence of other material events with
respect to the Company that would need to be described in such Registration Statement or the
related Prospectus and (B) in the case of clause (y), the Company is proceeding promptly and in
good faith to amend or supplement (including by way of filing documents under the Exchange Act
which are incorporated by reference into the Registration Statement) such Registration Statement
and the related Prospectus to describe such events; provided, however, that in the event a Blackout
Period occurs for a continuous period in excess of 30 days, a Registration Default shall be deemed
to have occurred on the 31st day of such Blackout Period and Additional Interest shall be payable
in accordance with the above paragraph from the day such Registration Default occurs until such
Registration Default is cured or until the Company is no longer required pursuant to this Agreement
to keep such Registration Statement effective or such Registration Statement or the related
Prospectus usable; provided, further, that in no event shall the total of all Blackout Periods
exceed 45 days in the aggregate for any 12-month period.




          All accrued Additional Interest shall be paid to the Holders entitled thereto, in the manner
provided for the payment of interest in the Indenture, on each Interest Payment Date, as more fully
set forth in the Indenture and the Notes and the Exchange Notes. Notwithstanding the fact that any
securities for which Additional Interest are due cease to be Transfer Restricted Securities, all
obligations of the Company to pay Additional Interest with respect to securities shall survive
until such time as such obligations with respect to such securities shall have been satisfied in
full.




          A Holder of Notes or Exchange Notes who is not entitled to the benefits of a Shelf
Registration Statement shall not be entitled to Additional Interest with respect to a Registration
Default that pertains to such Shelf Registration Statement.




SECTION 6. REGISTRATION PROCEDURES




          (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company shall (i) comply with all applicable provisions of Section 6(c) below, (ii) use its
reasonable best efforts to effect such exchange and to permit the resale of Exchange Notes by any
Broker-Dealer that tendered Notes in the Exchange Offer that such Broker-Dealer acquired for its
own account as a result of its market making activities or other trading activities (other than
Notes acquired directly from the Company or any of its Affiliates) being sold in accordance









 



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with the intended method or methods of distribution thereof, and (iii) comply with all of the
following provisions:





      (A) If, following the date hereof there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer, that in the reasonable
opinion of counsel to the Company raises a question as to whether the Exchange Offer is
permitted by applicable federal law, the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission allowing the Company to Consummate an Exchange
Offer for such Transfer Restricted Securities. the Company hereby agrees to pursue the
issuance of such a decision to the Commission staff level, but shall not be required to take
commercially unreasonable action to effect a change of Commission policy. Notwithstanding
the foregoing, the Company hereby agrees to take all such other actions as may be requested
by the Commission or otherwise required in connection with the issuance of such decision,
including without limitation (I) participating in telephonic conferences with the Commission
staff, (II) delivering to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (III) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.




      (B) As a condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a Broker-Dealer)
shall furnish, upon the request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the effect that
(I) it is not an Affiliate of the Company, (II) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer, (III) it is acquiring
the Exchange Notes in its ordinary course of business and (IV) if such Holder is a
Broker-Dealer, that it will receive Exchange Notes for its own account in exchange for Notes
that were acquired as a result of market-making activities or other trading activities and
that it will deliver a Prospectus in connection with any resale of such Exchange Notes. As
a condition to its participation in the Exchange offer, each Holder shall be required to
make such other representations as may be reasonably necessary under applicable Commission
rules, regulations or interpretations to render the use of Form S-4 or another appropriate
form under the Act available and will be required to agree to comply with their agreements
and covenants set forth in this Agreement. Each Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes will be required to acknowledge and
agree that, if the resales are of Exchange Notes obtained by such Holder in exchange for
Notes acquired directly from the Company or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement, rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the
Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter obtained pursuant to clause (A)
above), and (2) must comply with the registration and prospectus delivery requirements of
the Act in









 



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connection with a secondary resale transaction and that such a secondary resale
transaction must be covered by an effective Registration Statement containing the selling
security holder information required by Item 507 or 508, as applicable, of Regulation S-K




      (C) Prior to effectiveness of the Exchange Offer Registration Statement, the Company
shall provide a supplemental letter to the Commission (I) stating that the Company is
registering the Exchange Offer in reliance on the position of the Commission enunciated in
Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and
Co., Inc. (available June 5, 1991) as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (A) above, (II) including a representation that the Company has
not entered into any arrangement or understanding with any Person to distribute the Exchange
Notes to be received in the Exchange Offer and that, to the best of the Company’s
information and belief, each Holder participating in the Exchange Offer is acquiring the
Exchange Notes in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange Notes received in the
Exchange Offer and (III) any other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to clause (A) above, if applicable.



          (b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, the Company shall:




               (i) comply with all the provisions of Sections 6(c) and 6(d) below and use its reasonable best
efforts to effect such registration to permit the sale of the Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and pursuant thereto the
Company will prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with the provisions
hereof; and



               (ii) issue, upon the request of any Holder or purchaser of Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Exchange Notes having an aggregate principal
amount equal to the aggregate principal amount of Notes sold pursuant to the Shelf Registration
Statement and surrendered to the Company for cancellation; provided that such Holder provides all
documentation reasonably requested by the Company in connection with such issuance; the Company
shall register Exchange Notes and any related Subsidiary Guarantees on the Shelf Registration
Statement for this purpose and issue the Exchange Notes to the purchaser(s) of securities subject
to the Shelf Registration Statement in the names as such purchaser(s) shall designate.



          (c) General Provisions. In connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company shall:










 



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               (i) use its reasonable best efforts to keep such Registration Statement continuously effective
and provide all requisite financial statements for the period specified in Section 3 or 4 hereof,
as applicable. Upon the occurrence of any event that would cause (A) any such Registration
Statement to contain an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading or the Prospectus contained in such
Registration Statement to contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (B) such Registration Statement or Prospectus contained
therein not to be effective and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is required, use its
reasonable best efforts to cause such amendment to be declared effective as soon as practicable.
If at any time the Commission shall issue any stop order suspending the effectiveness of any
Registration Statement, or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company shall use its reasonable
best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;



               (ii) use its reasonable best efforts to prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement as may be necessary to keep
such Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof,
as the case may be; cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;



               (iii) in connection with any sale of Transfer Restricted Securities that will result in such
securities no longer being Transfer Restricted Securities, cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to
be registered in such denominations and such names as the selling Holders may request at least two
Business Days prior to such sale of Transfer Restricted Securities;



               (iv) use its reasonable best efforts to cause the disposition of the Transfer Restricted
Securities covered by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities; provided, however, that the
Company shall not be required to register or qualify as a foreign corporation where it is not now
so qualified or to take any action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;









 



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               (v) provide a CUSIP number for all Transfer Restricted Securities not later than the effective
date of a Registration Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with certificates for the Transfer Restricted Securities which are in a
form eligible for deposit with The Depository Trust Company;



               (vi) otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its security holders with regard to
any applicable Registration Statement, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited) covering a twelve-month period
beginning with the first month of the Compay’s first fiscal quarter commencing after the effective
date of the Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the
Act); and



               (vii) use its reasonable best efforts to cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required by this Agreement and,
in connection therewith, cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the terms of
the TIA; and execute and use its reasonable best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so qualified in a timely manner.



          (d) Additional Provisions Applicable to Shelf Registration Statements and Certain Exchange
Offer Prospectuses. In connection with each Shelf Registration Statement, and each Exchange
Offer Registration Statement if and to the extent that an Initial Purchaser has notified the
Company that it is a holder of Exchange Notes that are Transfer Restricted Securities (for so long
as such Exchange Notes are Transfer Restricted Securities or for the period provided in Section 3
hereof, whichever is shorter), the Company shall:




               (i) advise each Holder promptly and, if requested by such Holder, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading;









 



12


               (ii) subject to Section 6(c)(i) hereof, if any fact or event contemplated by Section
6(d)(i)(D) above shall exist or have occurred, use its reasonable best efforts to prepare a
supplement or post-effective amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading;



               (iii) furnish to each Holder in connection with such exchange or sale, if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus included therein
(except the Prospectus included in the Exchange Offer Registration Statement at the time it was
declared effective) or any amendments or supplements to any such Registration Statement or
Prospectus (but excluding any documents incorporated by reference as a result of the Company’s
periodic reporting requirements under the Exchange Act), which documents will be subject to the
review and comment of such Holders in connection with such sale, if any, for a period of at least
four Business Days, and the Company will not file any such Registration Statement or Prospectus or
any amendment or supplement to any such Registration Statement or Prospectus (excluding all such
documents incorporated by reference as a result of the Company’s periodic reporting requirements
under the Exchange Act) to which such Holders shall reasonably object within five Business Days
after the receipt thereof. A Holder shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading or fails to comply with the applicable
requirements of the Act;



               (iv) prior to the filing of any document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such document to each Holder in connection
with such exchange or sale, if any, make the Company’s representatives available for discussion of
such document and other customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably request;



               (v) make available, at reasonable times, for inspection by each Holder and any attorney or
accountant retained by such Holders, all relevant financial and other records, pertinent corporate
documents of the Company and cause the Company’s officers, directors and employees to supply all
information reasonably requested by any such Holder, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness; provided, however, that the foregoing inspection and information
gathering (A) shall be coordinated on behalf of the selling Holders, underwriters or any
representative thereof by one counsel, who shall be Latham & Watkins LLP or such other counsel as
may be chosen by the Holders of a majority in principal amount of Transfer Restricted Securities,
and (B) shall not be available or any such Holder who does not agree to hold such information in
confidence.



               (vi) if requested by any Holders in connection with such exchange or sale, use its reasonable
best efforts to include promptly in any Registration Statement or









 



13



Prospectus, pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the matters to be included in such
Prospectus supplement or post-effective amendment;



               (vii) furnish to each Holder in connection with such exchange or sale without charge, at least
one copy of the Registration Statement, as first filed with the Commission, and of each amendment
thereto, and upon request all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);



               (viii) deliver to each Holder without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Holder reasonably may
request; the Company hereby consents to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each selling Holder in connection with the offering and the sale
of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement
thereto; provided that such use of the Prospectus and any amendment or supplement thereto and such
offering and sale conforms to the Plan of Distribution set forth in the Prospectus and complies
with the terms of this Agreement and all applicable laws and regulations thereunder;



               (ix) upon the request of any Holder, enter into such customary agreements (including an
underwriting agreement) and make such customary representations and warranties and take all such
other customary actions in connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any applicable Registration Statement
contemplated by this Agreement as may be reasonably requested by any Holder in connection with any
sale or resale pursuant to any applicable Registration Statement. In such connection, the Company
shall have no obligation to enter into an underwriting agreement or permit an underwritten offering
unless a request therefore shall have been received from Holders of not less than 33% of the
aggregate principal amount of Transfer Restricted Securities then outstanding; and whether or not
an underwriting agreement is entered into and whether or not the registration is an underwritten
registration, the Company shall:




     (A) upon request of any Holder, furnish (or in the case of paragraphs (2) and (3), use
its reasonable best efforts to cause to be furnished) to each Holder, upon Consummation of
the Exchange Offer or upon the effectiveness of the Shelf Registration Statement, as the
case may be:




     (1) a certificate, dated such date, signed on behalf of the Company by (x) two senior
officers and (y) a principal financial or accounting officer of the Company, confirming, as
of the date thereof, the matters set forth in Sections 7(f) and (g) of the Purchase
Agreement and such other similar matters as such Holders may reasonably request;




     (2) an opinion, dated the date of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case may be, of counsel









 



14



for the Company covering the matters set forth in Section 7 (a) of the Purchase
Agreement and such other matters as such Holder may reasonably request, and in any event
including a representation to the effect that such counsel has participated in conferences
with officers and other representatives of the Company, representatives of the independent
public accountants for the Company and has considered the matters required to be stated
therein and the statements contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing, no facts came to such counsel’s attention that
caused such counsel to believe that the applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto became effective and, in the
case of the Exchange Offer Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration Statement as of its date
and, in the case of the opinion dated the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and




     (3) a customary comfort letter, dated the date of Consummation of the Exchange Offer,
or as of the date of effectiveness of the Shelf Registration Statement, as the case may be,
from the Company’s independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in the comfort letters delivered
pursuant to Section 7(c) of the Purchase Agreement; and




     (B) deliver such other documents and certificates as may be reasonably requested by the
selling Holders to evidence compliance with the matters covered in clause (A) above and with
any customary conditions contained in any agreement entered into by the Company pursuant to
this clause (ix);



               (x) prior to any public offering of Transfer Restricted Securities, cooperate with the selling
Holders and their counsel in connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any jurisdiction where it is not now so
subject; and









 



15


               (xi) provide promptly to each Holder, upon written request, each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act.



          (e) Restrictions on Holders. Each Holder’s acquisition of a Transfer Restricted
Security constitutes such Holder’s agreement that, upon receipt of the notice referred to in
Section 6(d)(i)(C) or any notice from the Company of the existence of any fact of the kind
described in Section 6(d)(i)(D) hereof (in each case, a “Suspension Notice”), such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(d)(ii) hereof, or (ii) such Holder is advised in writing by
the Company that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the Prospectus (in each
case, the “Recommencement Date”). Each Holder receiving a Suspension Notice shall be required to
either (I) destroy any Prospectuses, other than permanent file copies, then in such Holder’s
possession that have been replaced by the Company with a more recently dated Prospectus or (II)
deliver to the Company (at the Company’s expense) all copies, other than permanent file copies,
then in such Holder’s possession of the Prospectuses covering such Transfer Restricted Securities
that was current at the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period from and including
the date of delivery of the Suspension Notice to the date of delivery of the Recommencement Date.




SECTION 7. REGISTRATION EXPENSES




          (a) All expenses incident to the Company’s performance of or compliance with this Agreement
will be borne by the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including certificates for the Exchange Notes to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company and one counsel for the Holders of Transfer Restricted
Securities (which shall be Simpson Thacher & Bartlett or such other counsel as may be selected by a
majority of such Holders); (v) all application and filing fees in connection with listing the
Exchange Notes on a national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).




          The Company will, in any event, bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person, including special experts,
retained by the Company.




          (b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf









 



16


Registration Statement), the Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities who are tendering Notes in the Exchange Offer and/or selling or
reselling Notes or Exchange Notes pursuant to the “Plan of Distribution” contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel (who shall be Simpson Thacher & Bartlett LLP
unless another firm shall be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration Statement is being prepared).




SECTION 8. INDEMNIFICATION




          (a) The Company agrees to indemnify and hold harmless each Holder, its directors, officers and
each Person, if any, who controls such Holder (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act), to the fullest extent lawful from and against any and all losses,
claims, damages, liabilities or judgments (including without limitation, any reasonable legal or
other expenses incurred in connection with investigating or defending any matter, including any
action that could give rise to any such losses, claims, damages, liabilities or judgments) to which
they or any of them may become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities, judgments and expenses are caused by any untrue
statement or alleged untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus, Prospectus, Free Writing Prospectus or any “issuer information” (as defined
in Rule 433 of the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the
Securities Act (or any amendment or supplement thereto) provided by the Company to any Holder or
any prospective purchaser of Exchange Notes or registered Notes, or caused by any omission alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue statement or omission
that is based upon information relating to any of the Holders furnished in writing to the Company
by any of the Holders.




          (b) By its acquisition of Transfer Restricted Securities, each Holder of Transfer Restricted
Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, and its
respective directors and officers, and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company to the same extent as the
foregoing indemnity from the Company set forth in Section 8(a) hereof, but only with reference to
information relating to such Holder furnished in writing to the Company by such Holder expressly
for use in any Registration Statement or in any amendment or supplement thereto. In no event shall
any Holder, its directors, officers or any Person who controls such Holder be liable or responsible
for any amount in excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration Statement exceeds
(i) the amount paid by such Holder for such Transfer Restricted Securities and (ii) the amount of
any damages that such Holder, its directors, officers or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.










 



17




          (c) In case any action shall be commenced involving any Person in respect of which indemnity
may be sought pursuant to Section 8(a) or (b) hereof (the “indemnified party”), the indemnified
party shall promptly notify the Person against whom such indemnity may be sought (the “indemnifying
person”) in writing and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case of any action in respect of
which indemnity may be sought pursuant to both Sections 8(a) and (b) hereof, a Holder shall not be
required to assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of the Holder). Any indemnified party shall have
the right to employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i)
the employment of such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named
parties to any such action (including any impleaded parties) include both the indemnified party and
the indemnifying party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified, pursuant to Section 8(a) hereof, and by the
Company, in the case of parties indemnified, pursuant to Section 8(b) hereof. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any settlement of any action (A) effected
with its written consent or (B) effected without its written consent if the settlement is entered
into more than 20 Business Days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the indemnified party,
unless such settlement, compromise or judgment (I) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the subject matter of
such action and (II) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.




          (d) To the extent that the indemnification provided for in this Section 8 is unavailable to an
indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such









 



18


indemnified party shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand, and the
Holders, on the other hand, from their initial sale of Transfer Restricted Securities (or in the
case of Exchange Notes that are Transfer Restricted Securities, the sale of the Notes for which
such Exchange Notes were exchanged) or (ii) if the allocation provided by clause 8(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in such clause 8(d)(i) but also the relative fault of the Company, on
the one hand, and of the Holder, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand, or by the Holder,
on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and judgments referred to above shall
be deemed to include, subject to the limitations set forth in Section 8(c) hereof, any legal or
other fees or expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.




          The Company and, by its acquisition of Transfer Restricted Securities, each Holder agree that
it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the provisions of this Section
8, no Holder, its directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by which the total
received by such Holder with respect to the sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
The Holders’ obligations to contribute pursuant to this Section 8(d) are several in proportion to
the respective principal amount of Transfer Restricted Securities held by each Holder hereunder and
not joint.




SECTION 9. RULE 144A AND RULE 144




          The Company agrees with each Holder, for so long as any Transfer Restricted Securities remain
outstanding and during any period in which the Company (a) is not subject to









 



19


Section 13 or 15(d) of the Exchange Act, to make available, upon request of any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A, and (b) is subject to Section
13 or 15(d) of the Exchange Act, to use its reasonable best efforts to make all filings required
thereby in a timely manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.




SECTION 10. FUTURE SUBSIDIARY GUARANTEES




          If, prior to the Consummation of the Exchange Offer or prior to the effectiveness of the Shelf
Registration Statement, as the case may be, any subsidiary of the Company executes a Subsidiary
Guarantee in accordance with the terms and provisions of the Indenture, the Company shall cause
such subsidiary to execute and deliver to the parties hereto a counterpart signature page to this
Agreement and such subsidiary shall be bound by all the provisions of this Agreement as a guarantor
of the Company’s obligations and act as a registrant on any Registration Statement.




SECTION 11. MISCELLANEOUS




          (a) Remedies. The Company acknowledges and agrees that monetary damages (including
the Additional Interest contemplated by Section 5 hereof) would not be adequate compensation for
any loss incurred by reason of a breach by the Company of the provisions of this Agreement and the
Company hereby agrees to waive the defense in any action for specific performance that a remedy at
law would be adequate; provided that the Additional Interest contemplated by Section 5 hereof shall
be the exclusive remedy for any such breach of Section 3 or 4 of this Agreement.




          (b) No Free Writing Prospectus. The Company represents, warrants and covenants that
it (including its agents and representatives) will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in Rule 405 under the Securities Act), including
any Free Writing Prospectus, in connection with the issuance and sale of the Notes and the Exchange
Notes, other than any communication pursuant to Rule 134, Rule 135 or Rule 135c under the
Securities Act, any document constituting an offer to sell or solicitation of an offer to buy the
Notes or the Exchange Notes that falls within the exception from the definition of prospectus in
Section 2(a)(10)(a) of the Securities Act or a prospectus satisfying the requirements of Section
10(a) of the Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule 431 under the
Securities Act.




          (c) No Inconsistent Agreements. The Company will not, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement granting any registration rights with
respect to its securities to any Person that would require such securities to be included in any
Registration Statement filed hereunder. The rights granted to the Holders hereunder do









 



20


not in any way conflict with and are not inconsistent with the rights granted to the holders
of the Company’s securities under any agreement in effect on the date hereof.




          (d) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the provisions hereof may
not be given unless (i) in the case of Section 5 hereof and this Section 11(c)(i), the Company has
obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii)
in the case of all other provisions hereof, the Company has obtained the written consent of Holders
of a majority of the outstanding principal amount of Transfer Restricted Securities (excluding
Transfer Restricted Securities held by the Company or its Affiliates). Notwithstanding the
foregoing, a waiver of or consent to departure from the provisions hereof that relates exclusively
to the rights of Holders whose Transfer Restricted Securities are being tendered pursuant to the
Exchange Offer, and that does not affect directly or indirectly the rights of other Holders whose
Transfer Restricted Securities are not being tendered pursuant to such Exchange Offer, may be given
by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.




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




          By acquiring the Transfer Restricted Securities, a Holder will be deemed to have agreed to
indemnify and hold harmless the Company and its respective directors and officers, and each person,
if any, who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
to the same extent as the indemnity from the Company set forth in Section 8(a) hereof, but only
with reference to information relating to such Holder and provided in writing by such Holder for
inclusion in the Shelf Registration Statement.




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




               (i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and



               (ii) if to the Company:


UCI Holdco, Inc.

14601 Highway 41 North

Evansville, Indiana 47725



Attention: Bruce M. Zorich

Facsimile: (618) 456-2260




          All such notices and communications shall be deemed to have been duly given at the time
delivered by hand; when receipt is acknowledged, if telecopied; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.










 



21




          Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.




          (g) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.




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




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




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




          (j) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.




          (k) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and 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. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.











 



 




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




	 	 	 	 	 	 	 
	 	 	UCI Holdco, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/   Charles T. Dickson
 

Name: Charles T. Dickson
	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 






	 	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 
	Lehman Brothers Inc.

Goldman, Sachs & Co.	 	 
	 
	 	 	 	 
	By Lehman Brothers Inc.	 	 
	 
	 	 	 	 
	By:

	 	   /s/   Timothy N. Hartzell
 

Name: Timothy N. Hartzell
	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	By Goldman, Sachs & Co.	 	 
	 
	 	 	 	 
	By:

	 	   /s/   Goldman, Sachs & Co.
 

(Goldman, Sachs & Co.)