Unassociated Document


    
      

    

     

    
      	  
	
               

               

              Registration
                Rights Agreement

               

               

              Dated
                as of July 25, 2006

               

              between

               

              New
                River Pharmaceuticals Inc.

               

              and

               

              Merrill
                Lynch, Pierce, Fenner & Smith

              Incorporated

               

               

            


    

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    REGISTRATION
      RIGHTS AGREEMENT

     

    This
      Registration Rights Agreement (the “Agreement”) is made and entered into this
      25th day of July, 2006, between New River Pharmaceuticals Inc., a Virginia
      corporation (the “Company”), and Merrill Lynch, Pierce, Fenner & Smith
      Incorporated (“Merrill Lynch”).

     

    This
      Agreement is made pursuant to the Purchase Agreement (the “Purchase Agreement”),
      dated July 19, 2006, between the Company and the Initial Purchasers named
      therein (the “Initial Purchasers”), for whom Merrill Lynch acts as
      representative, which provides for the sale by the Company to the Initial
      Purchasers of $125,000,000 aggregate principal amount ($143,750,000 aggregate
      principal amount if the Initial Purchasers exercise their over-allotment option
      in full) of the Company’s 3.50% Convertible Subordinated Notes due 2013 (the
“Notes” and together with the shares of Common Stock of the Company into which
      the Notes are convertible, the “Securities”). In order to induce the Initial
      Purchasers to enter into the Purchase Agreement, the Company has agreed to
      provide to the Initial Purchasers and their direct and indirect transferees
      the
      registration rights set forth in this Agreement. The execution of this Agreement
      is a condition to the closing under the Purchase Agreement.

     

    In
      consideration of the foregoing, the parties hereto agree as
      follows:

     

    
      	 	
              1.

            	
              Definitions.

            


    

     

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

     

    “1933
      Act”
shall
      mean the Securities Act of 1933, as amended from time to time.

     

    “1934
      Act”
shall
      mean the Securities Exchange Act of l934, as amended from time to
      time.

     

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

     

    “Additional
      Interest”
shall
      have the meaning set forth in Section 2.4 herein.

     

    “Closing
      Date”
shall
      mean the Initial Closing Time as defined in the Purchase Agreement.

     

    “Common
      Stock”
shall
      mean any shares of common stock, par value $0.001 per share, of the Company
      and
      any other shares of common stock as may constitute “Common Stock” for purposes
      of the Indenture.

     

    “Company”
shall
      have the meaning set forth in the preamble and shall also include the Company’s
      successors.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    “Depositary”
shall
      mean The Depository Trust Company, or any other depositary appointed by the
      Company, provided,
      however,
      that
      such depositary must have an address in the Borough of Manhattan, in the City
      of
      New York.

     

    “Effectiveness
      Period”
shall
      have the meaning set forth in Section 2.1(b) herein.

     

    “Holder”
shall
      mean the Initial Purchasers, for so long as they own any Registrable Securities,
      and their successors, assigns and direct and indirect transferees who become
      owners, beneficial or otherwise, of Registrable Securities under the
      Indenture.

     

    “Indenture”
shall
      mean the Indenture relating to the Securities, dated as of the date hereof,
      between the Company and The Wilmington Trust Company, as Trustee, as the same
      may be amended, supplemented, waived or otherwise modified from time to time
      in
      accordance with the terms thereof.

     

    “Initial
      Purchasers”
shall
      have the meaning set forth in the preamble.

     

    “Issuer
      Free Writing Prospectus”
shall
      have the meaning set forth in Section 2.1(f) herein.

     

    “Majority
      Holders”
shall
      mean the Holders of a majority of the aggregate principal amount of outstanding
      Registrable Securities; provided
      that,
      for
      purposes of this definition, (1) a Holder of shares of Common Stock that
      constitutes Registrable Securities which were issued upon conversion of the
      Notes shall be deemed to hold an aggregate principal amount at maturity of
      Registrable Securities (in addition to the principal amount at maturity of
      any
      Registrable Securities held by such Holder) equal to the principal amount at
      maturity of Registrable Securities which were converted into such shares of
      Common Stock and (2) such Registrable Securities which were converted into
      such
      shares of Common Stock shall be deemed to be outstanding; provided
      further,
      that
      whenever the consent or approval of Holders of a specified percentage of
      Registrable Securities is required hereunder, Registrable Securities held by
      the
      Company or any Affiliate (as defined in the Indenture) of the Company shall
      be
      disregarded in determining whether such consent or approval was given by the
      Holders of such required percentage amount.

     

    “Merrill
      Lynch”
shall
      have the meaning set forth in the preamble.

     

    “Offering
      Memorandum”
shall
      mean the offering memorandum of the Company, dated July 19, 2006, related to
      the
      Securities.

     

    “Person”
shall
      mean an individual, partnership (general or limited), corporation, limited
      liability company, trust or unincorporated organization, or a government or
      agency or political subdivision thereof.

     

    “Prospectus”
shall
      mean the prospectus included in a Shelf Registration Statement, including any
      preliminary prospectus, and any such prospectus as amended or supplemented
      by
      any prospectus supplement, including any such prospectus supplement with respect
      to the terms of the offering of any portion of the Registrable Securities
      covered by a Shelf Registration Statement, and by all other amendments and
      supplements to a prospectus, including post-effective amendments, and in each
      case including all materials incorporated by reference therein.


    
      
        
        

      

      
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    “Purchase
      Agreement”
shall
      have the meaning set forth in the preamble.

     

    “Questionnaire”
shall
      have the meaning set forth in Section 2.1(d) herein.

     

    “Registrable
      Securities”
shall
      mean all or any of the Securities; provided,
      however,
      that
      any such Securities shall cease to be Registrable Securities when (i) a Shelf
      Registration Statement with respect to such Securities shall have been declared
      effective under the 1933 Act and such Securities shall have been disposed of
      pursuant to such Shelf Registration Statement, (ii) such Securities have been
      sold to the public pursuant to Rule 144 or may be sold or transferred pursuant
      to Rule l44(k) (or any similar provision then in force, but not Rule 144A)
      under
      the 1933 Act, or (iii) such Securities shall have ceased to be
      outstanding.

     

    “Registration
      Default”
shall
      have the meaning set forth in Section 2.4 herein.

     

    “Registration
      Expenses”
shall
      mean any and all expenses incident to performance of or compliance by the
      Company with this Agreement, whether or not a Shelf Registration Statement
      becomes effective, including without limitation: (i) all SEC, stock exchange
      or
      National Association of Securities Dealers, Inc. (the “NASD”)
      registration and filing fees, including, if applicable, the reasonable and
      documented fees and expenses of any “qualified independent underwriter” (and its
      counsel) that is required to be retained by any holder of Registrable Securities
      in accordance with the rules and regulations of the NASD, (ii) all fees and
      expenses incurred by the Company in connection with compliance with state
      securities or blue sky laws and compliance with the rules of the NASD (including
      reasonable and documented fees and disbursements of counsel for any underwriters
      or Holders in connection with blue sky qualification of any of the Registrable
      Securities and any filings with the NASD), (iii) all expenses of the Company
      in
      preparing or assisting in preparing, word processing, printing and distributing
      any Shelf Registration Statement, any Prospectus, any amendments or supplements
      thereto, any securities sales agreements and other documents relating to the
      performance of and compliance with this Agreement, (iv) all fees and expenses
      incurred by the Company in connection with the listing, if any, of any of the
      Registrable Securities on any securities exchange or exchanges, (v) all rating
      agency fees incurred by the Company, if any, (vi) the fees and disbursements
      of
      counsel for the Company and of the independent public accountants of the
      Company, including the expenses of any special audits or “comfort” letters
      required by or incident to such performance and compliance, (vii) the reasonable
      and documented fees and expenses of the Trustee, and any escrow agent or
      custodian, (viii) the reasonable and documented fees and expenses of a single
      counsel to the Holders in connection with the Shelf Registration Statement,
      which counsel shall be selected by the Majority Holders or Merrill Lynch on
      their behalf, and (ix) any fees and expenses of any special experts retained
      by
      the Company in connection with any Shelf Registration Statement, but excluding
      any underwriting discounts and commissions and transfer taxes, if any, relating
      to the sale or disposition of Registrable Securities by a Holder and the fees
      and expenses of any counsel to the Holders, except as provided for in clause
      (viii) above.


    
      
        
        

      

      
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    “SEC”
shall
      mean the Securities and Exchange Commission or any successor agency or
      government body performing the functions currently performed by the United
      States Securities and Exchange Commission.

     

    “Shelf
      Registration”
shall
      mean a registration effected pursuant to Section 2.1 hereof.

     

    “Shelf
      Registration Statement”
shall
      mean a “shelf” registration statement of the Company pursuant to the provisions
      of Section 2.1 of this Agreement which covers all of the Registrable Securities
      on an appropriate form under Rule 415 under the 1933 Act, or any similar rule
      that may be adopted by the SEC, and all amendments and supplements to such
      registration statement, including post-effective amendments, in each case
      including the Prospectus contained therein, all exhibits thereto and all
      materials incorporated by reference therein.

     

    “Suspension
      Period”
shall
      have the meaning set forth in Section 2.5 herein.

     

    “Trustee”
shall
      mean the trustee with respect to the Securities under the
      Indenture.

     

    
      	 	
              2.

            	
              Registration
                Under the 1933 Act.

            


    

     

    2.1   Shelf
      Registration.

     

    (a)    The
      Company shall, at its cost, no later than 120 days after the Closing Date,
      file
      with the SEC, and thereafter shall use its commercially reasonable efforts
      to
      cause to be declared effective as promptly as practicable but no later than
      210
      days after the Closing Date, a Shelf Registration Statement relating to the
      offer and sale of the Registrable Securities by the Holders that have provided
      the information pursuant to Section 2.1(d).

     

    (b)    The
      Company shall, at its cost, use its commercially reasonable efforts, subject
      to
      Section 2.5, to keep the Shelf Registration Statement continuously effective
      in
      order to permit the Prospectus forming part thereof to be usable by Holders
      (i) for a period of two years from the date the Shelf Registration
      Statement is declared effective by the SEC, or (ii) for such shorter period
      that will terminate (A) when all Registrable Securities covered by the
      Shelf Registration Statement have been sold pursuant to the Shelf Registration
      Statement, (B) when the Holders, other than “affiliates” (as defined in
      Rule 144 under the 1933 Act) of the Company, are able to sell or transfer to
      the
      public all Registrable Securities immediately without restriction pursuant
      to
      Rule 144 (or any similar provision then in force, including Rule 144(k) but
      not
      Rule 144A) under the 1933 Act or (C) when all Registrable Securities cease
      to be outstanding or otherwise cease to be Registrable Securities (the
“Effectiveness
      Period”).

     

    (c)    Notwithstanding
      any other provisions hereof, the Company shall use its commercially reasonable
      efforts to provide that (i) any Shelf Registration Statement and any amendment
      thereto and any Prospectus forming part thereof and any supplement thereto
      complies in all material respects with the 1933 Act and the rules and
      regulations thereunder, (ii) any Shelf Registration Statement and any amendment
      thereto does not, when it becomes effective, contain an untrue statement of
      a
      material fact or omit to state a material fact required to be stated therein
      or
      necessary to make the statements therein not misleading and (iii) any Prospectus
      forming part of any Shelf Registration Statement, and any supplement to such
      Prospectus (as amended or supplemented from time to time), does not include
      an
      untrue statement of a material fact or omit to state a material fact necessary
      in order to make the statements therein, in light of the circumstances under
      which they were made, not misleading.


    
      
        
        

      

      
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    (d)    Notwithstanding
      any other provision hereof, no Holder of Registrable Securities may include
      any
      of its Registrable Securities in the Shelf Registration Statement pursuant
      to
      this Agreement unless the Holder furnishes to the Company a fully completed
      notice and questionnaire in the form attached as Annex A to the Offering
      Memorandum (the “Questionnaire”)
      and
      such other information in writing as the Company may reasonably request in
      writing for use in connection with the Shelf Registration Statement or
      Prospectus included therein and in any application to be filed with or under
      state securities laws. At least 30 days prior to the filing of the Shelf
      Registration Statement, the Company will provide notice to the Holders of its
      intention to file the Shelf Registration Statement. In order to be named as
      a
      selling securityholder in the Prospectus at the time of effectiveness of the
      Shelf Registration Statement, each Holder must, before the filing of the Shelf
      Registration Statement and no later than the 20th day after being notified
      of
      the Company’s intention to file, furnish the completed Questionnaire and such
      other information that the Company may reasonably request in writing, if any,
      to
      the Company in writing and the Company shall include the information from the
      completed Questionnaire and such other information, if any, in the Shelf
      Registration Statement and the Prospectus in a manner so that upon effectiveness
      of the Shelf Registration Statement the Holder will be permitted to deliver
      the
      Prospectus to purchasers of the Holder’s Registrable Securities. From and after
      the date that the Shelf Registration Statement is first declared effective
      by
      the SEC, upon receipt of a completed Questionnaire and such other information
      that the Company may reasonably request in writing, if any, the Company will
      use
      its commercially reasonable efforts to file within 20 business days any
      amendments or supplements to the Shelf Registration Statement necessary for
      such
      Holder to be named as a selling securityholder in the Prospectus contained
      therein to permit such Holder to deliver the Prospectus to purchasers of the
      Holder’s Securities (subject to the Company’s right to suspend the Shelf
      Registration Statement as described in Section 2.5 below); provided,
      however,
      that
      the Company shall not be required to file more than one such amendment to the
      Shelf Registration Statement in any calendar quarter for all such Holders.
      Holders that do not deliver a completed written Questionnaire and such other
      information, as provided for in this Section 2.1(d), will not be named as
      selling securityholders in the Prospectus. Each Holder named as a selling
      securityholder in the Prospectus agrees to promptly furnish to the Company
      all
      information required to be disclosed in order to make information previously
      furnished to the Company by the Holder not materially misleading and any other
      information regarding such Holder and the distribution of such Holder’s
      Registrable Securities as the Company may from time to time reasonably request
      in writing. 

     

    (e)    Each
      Holder agrees not to sell any Registrable Securities pursuant to the Shelf
      Registration Statement without delivering, or causing to be delivered, a
      Prospectus to the purchaser thereof and, following termination of the
      Effectiveness Period, to notify the Company, within ten days of a written
      request by the Company, of the amount of Registrable Securities sold pursuant
      to
      the Shelf Registration Statement and, in the absence of a response, the Company
      may assume that all of such Holder’s Registrable Securities have been so sold;
      provided that the Company shall use reasonable efforts to confirm that all
      of
      such Holder’s Registrable Securities have been so sold prior to making such
      assumption.


    
      
        
        

      

      
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    (f)    The
      Company represents and agrees that, unless it obtains the prior consent of
      a
      majority of the Registrable Securities that are registered under the Shelf
      Registration Statement at such time or the approval of the counsel for the
      Holders of such Registrable Securities or the consent of the managing
      underwriter in connection with any underwritten offering of Registrable
      Securities, and each Holder represents and agrees that, unless it obtains the
      prior consent of the Company and any such underwriter, it will not make any
      offer relating to the Securities that would constitute an “issuer free writing
      prospectus,” as defined in Rule 433 under the 1933 Act (an “Issuer
      Free Writing Prospectus”),
      or
      that would otherwise constitute a “free writing prospectus,” as defined in Rule
      405 under the 1933 Act, required to be filed with the SEC. The Company
      represents that any Issuer Free Writing Prospectus will not include any
      information that conflicts with the information contained in the Shelf
      Registration Statement or Prospectus and that any Issuer Free Writing
      Prospectus, when taken together with the information in the Shelf Registration
      Statement and the Prospectus, will not include any untrue statement of a
      material fact or omit to state any material fact necessary in order to make
      the
      statements therein, in light of the circumstances under which they were made,
      not misleading.

     

    The
      Company will not permit any securities other than Registrable Securities to
      be
      included in the Shelf Registration Statement. The Company agrees to supplement
      or amend the Shelf Registration Statement if required by the rules, regulations
      or instructions applicable to the registration form used by the Company if
      required by the 1933 Act, or to the extent the Company does not reasonably
      object, as reasonably requested in writing by the Initial Purchasers with
      respect to information relating to the Initial Purchasers or by the Trustee
      on
      behalf of the Holders with respect to information relating to the Holders,
      and
      to furnish to the Holders of Registrable Securities that are covered under
      such
      Shelf Registration Statement copies of any such supplement or amendment promptly
      after its being used or filed with the SEC in such amounts as they may
      reasonably request.

     

    2.2   Expenses.
      The
      Company shall pay all Registration Expenses in connection with the registration
      pursuant to Section 2.1. Each Holder shall pay all underwriting discounts and
      commissions and transfer taxes, if any, relating to the sale or disposition
      of
      such Holder’s Registrable Securities pursuant to the Shelf Registration
      Statement.

     

    2.3   Effectiveness.
      (a)  The
      Company will be deemed not to have used its reasonable best efforts to cause
      the
      Shelf Registration Statement to become, or to remain, effective during the
      requisite period (subject to Section 2.5) if the Company voluntarily takes
      any
      action that would, or omits to take any action which omission would, result
      in
      any such Shelf Registration Statement not being declared effective or in the
      Holders of Registrable Securities covered thereby not being able to offer and
      sell such Registrable Securities during that period as and to the extent
      contemplated hereby, unless such action is required by applicable law.



    
      
        
        

      

      
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    (b)    A
      Shelf
      Registration Statement pursuant to Section 2.1 hereof will not be deemed to
      have
      become effective unless it has been declared effective by the SEC or have become
      automatically effective under the 1933 Act; provided,
      however,
      that
      if, after it has been declared effective, the offering of Registrable Securities
      pursuant to a Shelf Registration Statement is interfered with by any stop order,
      injunction or other order or requirement of the SEC or any other governmental
      agency or court, such Shelf Registration Statement will be deemed not to have
      become effective during the period of such interference, until the offering
      of
      Registrable Securities pursuant to such Shelf Registration Statement may legally
      resume.

     

    2.4   Interest.
      In the
      event that (a) a Shelf Registration Statement is not filed with the SEC on
      or
      before the 120th
      calendar
      day following the Closing Date, (b) a Shelf Registration Statement is not
      declared effective on or prior to the 210th
      calendar
      day following the Closing Date, (c) after effectiveness, subject to Section
      2.5,
      the Shelf Registration Statement ceases to be effective or fails to be usable
      by
      the Holders without being succeeded within seven business days by a
      post-effective amendment or a report filed with the SEC pursuant to the 1934
      Act
      that cures the failure to be effective or usable, or (d) the Prospectus is
      unusable by the Holders for any reason, and the number of days for which the
      Shelf Registration Statement shall not be usable exceeds the Suspension Period
      (as defined in Section 2.5 hereof) (each such event being a “Registration
      Default”),
      additional interest (“Additional
      Interest”)
      will
      accrue at a rate per annum of one-quarter of one percent (0.25%) of the
      principal amount of the Securities for the first 90-day period from the day
      following the Registration Default, and thereafter at a rate per annum of
      one-half of one percent (0.50%) of the principal amount of the Securities;
      provided
      that in
      no event shall Additional Interest accrue at a rate per annum exceeding one
      half
      of one percent (0.50%) of the issue price of the Securities; provided
      further
      that no
      Additional Interest shall accrue after the second anniversary of the Closing
      Date. Upon the cure of all Registration Defaults then continuing, the accrual
      of
      Additional Interest will automatically cease and the interest rate borne by
      the
      Securities will revert to the original interest rate at such time. Additional
      Interest shall be computed based on the actual number of days elapsed in each
      90-day period in which the Shelf Registration Statement or the Prospectus is
      not
      effective or is unusable. Holders who have converted Securities into Common
      Stock will not be entitled to receive any Additional Interest with respect
      to
      such Common Stock or the issue price of the Securities converted.

     

    The
      Company shall notify the Trustee within five business days after each and every
      date on which an event occurs in respect of which Additional Interest is
      required to be paid. Additional Interest shall be paid by depositing with the
      Trustee, in trust, for the benefit of the Holders of Registrable Securities,
      on
      or before the applicable semiannual interest payment date, in immediately
      available funds in sums sufficient to pay the Additional Interest then due.
      The
      Additional Interest due shall be payable in arrears on each interest payment
      date to the record Holder of Registrable Securities entitled to receive the
      interest payment to be paid on such date as set forth in the Indenture. Each
      obligation to pay Additional Interest shall be deemed to accrue from and
      including the day following the Registration Default to but excluding the day
      on
      which the Registration Default is cured.

     

    A
      Registration Default under clause (a) above shall be cured on the date that
      the
      Registration Statement is filed with the SEC. A Registration Default under
      clause (b) above shall be cured on the date that the Shelf Registration
      Statement is declared effective by the SEC or deemed to become automatically
      effective under the 1933 Act. A Registration Default under clauses (c) or (d)
      above shall be cured on the date an amended Shelf Registration Statement is
      declared effective by the SEC or deemed to become automatically effective under
      the 1933 Act, or the Company otherwise declares the Shelf Registration Statement
      and the Prospectus useable, as applicable. The Company will have no liabilities
      for monetary damages other than the Additional Interest with respect to any
      Registration Default.


    
      
        
        

      

      
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    2.5    Suspension.
      Notwithstanding any other provision hereof, the Company may suspend the use
      of
      any Prospectus, without incurring or accruing any obligation to pay Additional
      Interest pursuant to Section 2.4 hereof or being deemed in violation of any
      other provision hereof, for a period not to exceed 45 calendar days in any
      three-month period, or an aggregate of 120 calendar days in any twelve-month
      period, (each, a “Suspension
      Period”)
      if the
      Board of Directors of the Company shall have determined in good faith that
      because of valid business reasons (not including avoidance of the Company’s
      obligations hereunder), including without limitation proposed or pending
      corporate developments and similar events or because of filings with the SEC,
      it
      is in the best interests of the Company to suspend such use, and prior to
      suspending such use the Company provides the Holders with written notice of
      such
      suspension, which notice need not specify the nature of the event giving rise
      to
      such suspension. Each Holder shall keep confidential any communications received
      by it from the Company regarding the suspension of the use of the Prospectus,
      except as required by applicable law.

     

    3.    Registration
      Procedures.

     

    In
      connection with the obligations of the Company with respect to the Shelf
      Registration, the Company shall, subject to the rights of the Company to invoke
      and maintain a Suspension Period in accordance with Section 2.5 without being
      in
      violation of any of the provisions hereunder:

     

    (a)    prepare
      and file with the SEC a Shelf Registration Statement, within the relevant time
      period specified in Section 2, on the appropriate form under the 1933 Act,
      which
      form (i) shall be selected by the Company, (ii) shall be available for the
      sale
      of the Registrable Securities by the selling Holders thereof, (iii) shall comply
      as to form in all material respects with the requirements of the applicable
      form
      and include or incorporate by reference all financial statements required by
      the
      SEC to be filed therewith or incorporated by reference therein, and (iv) shall
      comply in all respects with the applicable requirements of Regulation S-T under
      the 1933 Act, if any, and use commercially reasonable efforts to cause such
      Shelf Registration Statement to become effective and remain effective in
      accordance with Section 2 hereof;

     

    (b)    prepare
      and file with the SEC such amendments and post-effective amendments to the
      Shelf
      Registration Statement as may be necessary under applicable law to keep the
      Shelf Registration Statement effective for the Effectiveness Period, subject
      to
      Section 2.5; and cause each Prospectus to be supplemented by any required
      prospectus supplement, and as so supplemented to be filed pursuant to Rule
      424
      (or any similar provision then in force) under the 1933 Act and comply during
      the Effectiveness Period with the provisions of the 1933 Act, the 1934 Act
      and
      the rules and regulations thereunder required to enable the disposition of
      all
      Registrable Securities covered by the Shelf Registration Statement in accordance
      with the intended method or methods of distribution by the selling Holders
      thereof;


    
      
        
        

      

      
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    (c)    (i)  notify
      each Holder of Registrable Securities of the filing of a Shelf Registration
      Statement with respect to the Registrable Securities; (ii) furnish to each
      Holder of Registrable Securities that has provided the information required
      by
      Section 2.1(d) and to each underwriter of an underwritten offering of
      Registrable Securities, if any, without charge, electronic copies of each
      Prospectus, including each preliminary Prospectus, and any amendment or
      supplement thereto and such other documents as such Holder or underwriter may
      reasonably request, including financial statements and schedules and, if the
      Holder so requests, all exhibits in order to facilitate the unrestricted sale
      or
      other disposition of the Registrable Securities; and (iii) subject to Section
      2.5 hereof and to any notice by the Company in accordance with Section 3(e)
      hereof of the existence of any fact of the kind described in Sections 3(e)(ii),
      (iii), (iv), (v) and (vi) hereof, hereby consent to the use of the Prospectus
      or
      any amendment or supplement thereto by each of the selling Holders of
      Registrable Securities that has provided the information required by Section
      2.1(d) in connection with the offering and sale of the Registrable
      Securities;

     

    (d)    use
      commercially reasonable efforts to register or qualify the Registrable
      Securities under all applicable state securities or “blue sky” laws of such
      jurisdictions as any Holder of Registrable Securities covered by a Shelf
      Registration Statement and each underwriter of an underwritten offering of
      Registrable Securities shall reasonably request, and do any and all other acts
      and things which may be reasonably necessary or advisable to enable each such
      Holder and underwriter to consummate the disposition in each such jurisdiction
      of such Registrable Securities owned by such Holder; provided,
      however,
      that
      the Company shall not be required to (i) qualify as a foreign corporation or
      as
      a dealer in securities in any jurisdiction where it would not otherwise be
      required to qualify but for this Section 3(d), or (ii) take any action which
      would subject it to general service of process or taxation in any such
      jurisdiction where it is not then so subject;

     

    (e)    notify
      promptly each Holder of Registrable Securities under a Shelf Registration
      Statement that has provided the information required by Section 2.1(d) and,
      if
      requested by such Holder, confirm such advice in writing promptly (i) when
      a
      Shelf Registration Statement has become effective and when any post-effective
      amendments thereto have become effective, (ii) of any request by the SEC or
      any
      state securities authority for post-effective amendments and supplements to
      a
      Shelf Registration Statement and Prospectus or for additional information
      relating thereto after the Shelf Registration Statement has become effective,
      (iii) of the issuance by the SEC or any state securities authority of any stop
      order suspending the effectiveness of a Shelf Registration Statement or the
      initiation of any proceedings for that purpose, (iv) of the happening of any
      event or the discovery of any facts during the period a Shelf Registration
      Statement is effective which makes any statement made in such Shelf Registration
      Statement or the related Prospectus untrue in any material respect or which
      requires the making of any changes in such Shelf Registration Statement or
      Prospectus in order to make the statements therein (in the case of the
      Prospectus in light of the circumstances under which they were made) not
      misleading, (v) of the receipt by the Company of any notification with respect
      to the suspension of the qualification of the Registrable Securities for sale
      in
      any jurisdiction or the initiation or threatening of any proceeding for such
      purpose and (vi) of any determination by the Company that a post-effective
      amendment to such Shelf Registration Statement would be appropriate, other
      than
      a post-effective amendment solely to add selling Holders;


    
      
        
        

      

      
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    (f)    furnish
      to each Initial Purchaser on behalf of the Holders of Registrable Securities
      and
      to special counsel to the Initial Purchasers (i) copies of any comment letters
      received from the SEC with respect to a Shelf Registration Statement, and,
      if
      requested, with respect to any documents incorporated therein and (ii) any
      other
      request by the SEC or any state securities authority for amendments or
      supplements to a Shelf Registration Statement and Prospectus or for additional
      information with respect to the Shelf Registration Statement and
      Prospectus;

     

    (g)    use
      commercially reasonable efforts to obtain the withdrawal of any order suspending
      the effectiveness of a Shelf Registration Statement at the earliest possible
      moment and provide prompt notice to each Holder of the withdrawal of such order;
      

     

    (h)    furnish
      to each Holder of Registrable Securities that has provided the information
      required by Section 2.1(d), and each underwriter, if any, without charge, at
      least one conformed copy of each Shelf Registration Statement and any
      post-effective amendment thereto, including financial statements and schedules
      (without documents incorporated therein by reference and all exhibits thereto,
      unless requested);

     

    (i)    if
      electronic global certificates for the Registrable Securities are not then
      available, cooperate with the selling Holders of Registrable Securities to
      facilitate the timely preparation and delivery of certificates representing
      Registrable Securities to be sold and not bearing any restrictive legends (other
      than as required by applicable law); and enable such Registrable Securities
      to
      be in such denominations (consistent with the provisions of the Indenture)
      and
      registered in such names as the selling Holders or the underwriters, if any,
      may
      reasonably request at least three business days prior to the closing of any
      sale
      of Registrable Securities;

     

    (j)    upon
      the
      occurrence of any event or the discovery of any facts, each as contemplated
      by
      Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, as promptly as practicable
      after the occurrence of such an event, use commercially reasonable efforts
      to
      prepare a supplement or post-effective amendment to the Shelf Registration
      Statement or the related Prospectus or any document incorporated therein by
      reference or file any other required document so that, as thereafter delivered
      to the purchasers of the Registrable Securities, such Prospectus will not
      contain at the time of such delivery any untrue statement of a material fact
      or
      omit to state a material fact necessary to make the statements therein, in
      light
      of the circumstances under which they were made, not misleading or will remain
      so qualified. At such time as such public disclosure is otherwise made or the
      Company determines that such disclosure is not necessary, in each case to
      correct any misstatement of a material fact or to include any omitted material
      fact, the Company agrees promptly to notify each Holder of Registrable
      Securities covered by such Shelf Registration Statement of such determination
      and to furnish each Holder such number of copies of the Prospectus as amended
      or
      supplemented, as such Holder may reasonably request;


    
      
        
        

      

      
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    (k)    no
      less
      than three business days prior to the filing of any Shelf Registration
      Statement, any Prospectus, any amendment to a Shelf Registration Statement
      or
      amendment or supplement to a Prospectus (other than amendments and supplements
      that do nothing more than name Holders and provide information with respect
      thereto), provide copies of such document to the Initial Purchasers on behalf
      of
      such Holders, and make representatives of the Company, as shall be reasonably
      requested by special counsel to the Holders of Registrable Securities or the
      Initial Purchasers on behalf of such Holders, available for discussion of such
      document;

     

    (l)    obtain
      CUSIP numbers for all Registrable Securities not later than the effective date
      of the Shelf Registration Statement and provide the Trustee with printed
      certificates for the Registrable Securities in a form eligible for deposit
      with
      the Depositary;

     

    (m)    (i)
      cause
      the Indenture to be qualified under the 1939 Act in connection with the
      registration of the Registrable Securities, (ii) cooperate with the Trustee
      and
      the Holders to effect such changes to the Indenture as may be required for
      the
      Indenture to be so qualified in accordance with the terms of the 1939 Act,
      and
      (iii) execute, and use commercially reasonable efforts to cause the Trustee
      to
      execute, all documents as may be required to effect such changes, and all other
      forms and documents required to be filed with the SEC to enable the Indenture
      to
      be so qualified in a timely manner;

     

    (n)    enter
      into such customary agreements (including, if requested, an underwriting
      agreement in customary form) and take all other customary and appropriate
      actions, if any, as the Majority Holders shall reasonably request in writing
      in
      order to expedite or facilitate the disposition of such Registrable Securities,
      including, but not limited to:

     

    (i)    
obtain
      opinions of counsel to the Company and updates thereof addressed to each selling
      Holder and the underwriters, if any, covering the matters set forth in the
      opinions of such counsel delivered at the Closing Date as are customarily
      covered in legal opinions in connection with underwritten offering of
      securities;

     

    (ii)    obtain
      “comfort” letters and updates thereof from the Company’s independent certified
      public accountants (and, if necessary, any other independent certified public
      accountants of the subsidiary of the Company or of any business acquired by
      the
      Company for which financial statements are, or are required to be, included
      in
      the Shelf Registration Statement) addressed to the underwriters, if any, and
      use
      reasonable efforts to have such letter addressed to the selling Holders of
      Registrable Securities (to the extent consistent with Statement on Auditing
      Standards No. 72 of the American Institute of Certified Public Accounts), such
      letters substantially in the form and covering the matters covered in the
      comfort letter delivered on the Closing Date;

     

    (iii)    if
      an
      underwriting agreement is entered into, cause the same to set forth
      indemnification provisions and procedures substantially equivalent to the
      indemnification provisions and procedures set forth in Section 4 hereof with
      respect to the underwriters and all other parties to be indemnified pursuant
      to
      said Section or, at the request of any underwriters, in the form customarily
      provided to such underwriters in similar types of transactions;
      and


    
      
        
        

      

      
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    (iv)   deliver
      such documents and certificates as may be reasonably requested and as are
      customarily delivered in similar offerings to the Holders of a majority in
      principal amount of the Registrable Securities being sold and the managing
      underwriters, if any.

     

    The
      above
      shall be done only in connection with any underwritten offering of Registrable
      Securities using such Shelf Registration Statement pursuant to an underwriting
      or similar agreement as and to the extent required thereunder, and as reasonably
      requested by the Majority Holders thereto. Anything herein to the contrary
      notwithstanding, the Company will not be required to pay the costs and expenses
      of, or to participate in the marketing or “road show” presentations of, more
      than one underwritten offering of Registrable Securities every 12 months
      commencing on the Closing Date. The Company will not be required to pay the
      costs and expenses of, or to participate in the marketing or “road show”
presentations of, an underwritten offering of Registrable Securities unless
      requested by the Majority Holders;

     

    (o)    if
      reasonably requested in connection with a disposition of Registrable Securities,
      make available for inspection during business hours by representatives of the
      Holders of the Registrable Securities, any underwriters participating in any
      disposition pursuant to a Shelf Registration Statement and any counsel or
      accountant retained by any of the foregoing, all financial and other records,
      pertinent corporate documents and properties of the Company reasonably requested
      in writing by any such persons, and cause the respective officers, directors,
      employees, and any other agents of the Company to supply all information
      reasonably requested by any such representative, underwriter, special counsel
      or
      accountant in connection with a Shelf Registration Statement, and make such
      representatives of the Company available for discussion of such documents as
      shall be reasonably requested by the Initial Purchasers, in each case as is
      customary for “due diligence” investigations; provided
      that, to
      the extent the Company, in its reasonable discretion, agrees to disclose
      material non-public information, such persons shall first agree in writing
      with
      the Company that any such non-public information shall be kept confidential
      by
      such persons and shall be used solely for the purposes of exercising rights
      under this Agreement and such person shall not engage in trading any securities
      of the Company until such material non-public information becomes properly
      publicly available, unless (i) disclosure of such information is required by
      court or administrative order or is necessary to respond to inquiries of
      regulatory authorities, (ii) disclosure of such information is required by
      law
      (including any disclosure requirements pursuant to federal securities laws
      in
      connection with the filing of any Shelf Registration Statement or the use of
      any
      Prospectus referred to in this Agreement upon a customary opinion of counsel
      for
      such persons delivered and reasonably satisfactory to the Company), (iii) such
      information becomes generally available to the public other than as a result
      of
      a disclosure or failure to safeguard by any such person, (iv) such information
      becomes available to any such person from a source other than the Company and
      such source is not bound by a confidentiality agreement, or (v) such non-public
      information ceases to be material; provided
      further,
      that,
      the foregoing inspection and information gathering shall, to the greatest extent
      possible, be coordinated on behalf of all the Holders and the other parties
      entitled thereto by special counsel to the Holders;


    
      
        
        

      

      
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    (p)    if
      requested in writing by any selling Holder of Registrable Securities that has
      provided the information required by Section 2.1(d), a reasonable time prior
      to
      filing the Shelf Registration Statement, any Prospectus forming a part thereof,
      any amendment to the Shelf Registration Statement or amendment or supplement
      to
      such Prospectus (other than amendments and supplements that do nothing more
      than
      name Holders and provide information with respect thereto), (i) provide
      copies of such document to the Holders of Registrable Securities that have
      provided the information required by Section 2.1(d), to the Initial Purchasers,
      to special counsel for the Holders and to the underwriter or underwriters of
      an
      underwritten offering of Registrable Securities, if any, (ii) make such
      changes in any such document prior to the filing thereof as the Initial
      Purchasers, the special counsel to the Holders or the underwriter or
      underwriters reasonably agree should be included therein and provide to the
      Company in writing for inclusion therein within three business days of delivery
      of such copies, (iii) if requested by any selling Holder of Registrable
      Securities that has provided the information required by Section 2.1(d), not
      file any such document in a form (A) to which the Majority Holders, the Initial
      Purchasers on behalf of the Holders of Registrable Securities, special counsel
      for the Holders of Registrable Securities or any underwriter shall not have
      previously been advised and furnished a copy of or (B) to which the
      Majority Holders, the Initial Purchasers on behalf of the Holders of Registrable
      Securities, special counsel to the Holders of Registrable Securities or any
      underwriter shall reasonably object within three business days of delivery
      of
      such copies, and (iv) make the representatives of the Company available for
      discussion of such document as shall be reasonably requested in writing by
      the
      Holders of Registrable Securities, the Initial Purchasers on behalf of such
      Holders, special counsel for the Holders of Registrable Securities or any
      underwriter; provided, however, that the foregoing discussion shall be
      coordinated on behalf of the parties entitled thereto by the special counsel
      to
      the Holders;

     

    (q)    if
      requested by any selling Holder or the underwriters, if any, incorporate in
      the
      Shelf Registration Statement or Prospectus, pursuant to a supplement or
      post-effective amendment if necessary, such information as such selling Holder
      or underwriter, if any, may reasonable request in writing to have included
      therein with respect to the name or names of such selling Holder, the number
      of
      shares of Common Stock or principal amount of Securities owned by such Holder,
      the plan of distribution of the Registrable Securities (as required by Item
      508
      of Regulation S-K), the principal amount of Securities or number of shares
      of
      Common Stock being sold, the purchase price being paid therefor, and any other
      terms of the offering of the Registrable Securities to be sold in such
      offering;

     

    (r)    use
      commercially reasonable efforts to cause all Registrable Securities to be listed
      on any securities exchange or inter-dealer quotation system on which similar
      debt securities issued by the Company are then listed if requested by the
      Majority Holders, or if requested by the underwriter or underwriters of an
      underwritten offering of Registrable Securities, if any;

     

    (s)    use
      commercially reasonable efforts to cause the Registrable Securities to be rated
      by the appropriate rating agencies if requested by the underwriter or
      underwriters of an underwritten public offering of Registrable Securities,
      if
      any;

     

    (t)    otherwise
      comply with all applicable rules and regulations of the SEC and make available
      to its security holders, as soon as reasonably practicable, an earnings
      statement covering at least 12 months which shall satisfy the provisions of
      Section 11(a) of the 1933 Act and Rule 158 thereunder; and


    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    


    (u)    cooperate
      and assist in any filings required to be made with the NASD and in the
      performance of any due diligence investigation by any underwriter and its
      counsel (including any “qualified independent underwriter” that is required to
      be retained in accordance with the rules and regulations of the
      NASD).

     

    Without
      limiting the provisions of Section 2.1(d), the Company may (as a condition
      to
      such Holder’s participation in the Shelf Registration) require each Holder of
      Registrable Securities to furnish to the Company such information regarding
      the
      Holder and the proposed distribution by such Holder of such Registrable
      Securities as the Company may from time to time reasonably request in
      writing.

     

    Each
      Holder agrees that, upon receipt of any notice from the Company of the happening
      of any event or the discovery of any facts, each of the kind described in
      Section 3(e)(ii), (iii), (iv), (v) or (vi) hereof, such Holder will forthwith
      discontinue disposition of Registrable Securities pursuant to the Prospectus
      included in the Shelf Registration Statement until such Holder’s receipt of the
      copies of the supplemented or amended Prospectus contemplated by Section 3(j)
      hereof or written notice from the Company that the Shelf Registration Statement
      is again effective and no amendment or supplement is needed, and, if so directed
      by the Company, such Holder will deliver to the Company (at its expense) all
      copies in such Holder’s possession, other than permanent file copies then in
      such Holder’s possession, of the Prospectus covering such Registrable Securities
      current at the time of receipt of such notice. 

     

    In
      the
      event that a Registration Default has occurred and is continuing, the Company
      shall not file any Registration Statement with respect to any securities (within
      the meaning of Section 2(1) of the 1933 Act) of the Company or its subsidiary
      other than Registrable Securities.

     

    If
      any of
      the Registrable Securities covered by any Shelf Registration Statement are
      to be
      sold in an underwritten offering, the underwriter or underwriters and manager
      or
      managers that will manage such offering will be selected by the Majority Holders
      of such Registrable Securities included in such offering and shall be acceptable
      to the Company. No Holder of Registrable Securities may participate in any
      underwritten registration hereunder unless such Holder (a) agrees to sell such
      Holder’s Registrable Securities on the basis provided in any underwriting
      arrangements approved by the persons entitled hereunder to approve such
      arrangements and (b) completes and executes all questionnaires, powers of
      attorney, indemnities, underwriting agreements and other documents required
      under the terms of such underwriting arrangements.

     

    4.    Indemnification;
      Contribution.

     

    (a)    The
      Company agrees to indemnify and hold harmless each Initial Purchaser, each
      Holder, each Person who participates as an underwriter, if any (any such Person
      being an “Underwriter”) and each Person, if any, who controls any such Holder or
      Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
      of
      the 1934 Act as follows:


    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    


    (i)    against
      any and all loss, liability, claim, damage and expense whatsoever, as incurred,
      arising out of any untrue statement or alleged untrue statement of a material
      fact contained in any Shelf Registration Statement (or any amendment or
      supplement thereto) pursuant to which Registrable Securities were registered
      under the 1933 Act, including all documents incorporated therein by reference,
      or the omission or alleged omission therefrom of a material fact required to
      be
      stated therein or necessary to make the statements therein not misleading,
      or
      arising out of any untrue statement or alleged untrue statement of a material
      fact contained in any Prospectus (or any amendment or supplement thereto) or
      any
      Issuer Free Writing Prospectus (or any amendment or supplement thereto) or
      the
      omission or alleged omission therefrom of a material fact necessary in order
      to
      make the statements therein, in the light of the circumstances under which
      they
      were made, not misleading;

     

    (ii)    against
      any and all loss, liability, claim, damage and expense whatsoever, as incurred,
      to the extent of the aggregate amount paid in settlement of any litigation,
      or
      any investigation or proceeding by any governmental agency or body, commenced
      or
      threatened, or of any claim whatsoever based upon any such untrue statement
      or
      omission, or any such alleged untrue statement or omission; provided
      that
      (subject to Section 4(d) below) any such settlement is effected with the written
      consent of the Company; and

     

    (iii)   against
      any and all expense whatsoever, as incurred (including the reasonable and
      documented fees and disbursements of counsel chosen by any indemnified party),
      reasonably incurred and documented in investigating, preparing or defending
      against any litigation, or any investigation or proceeding by any governmental
      agency or body, commenced or threatened, or any claim whatsoever based upon
      any
      such untrue statement or omission, or any such alleged untrue statement or
      omission, to the extent that any such expense is not paid under subparagraph
      (i)
      or (ii) above; 

     

    provided,
      however,
      that
      this indemnity agreement shall not apply to any loss, liability, claim, damage
      or expense to the extent arising out of (A) any untrue statement or omission
      or
      alleged untrue statement or omission made in reliance upon and in conformity
      with written information furnished to the Company by or on behalf of any Holder
      or Underwriter, if any, expressly for use in a Shelf Registration Statement
      (or
      any amendment thereto), any Prospectus (or any amendment or supplement thereto)
      or any Issuer Free Writing Prospectus (or any amendment or supplement thereto),
      (B) use of a Prospectus during a period when use of such Prospectus has been
      validly suspended pursuant to Section 2.5 hereof, provided that such Holder
      has
      received prior notice of such suspension or (C) failure of such Holder to
      deliver a prospectus, as then amended or supplemented, as required by applicable
      laws, provided that the Company shall have delivered to such Holder such
      Prospectus, as then amended or supplemented.

     

    (b)    Each
      Holder, severally, but not jointly, agrees to indemnify and hold harmless the
      Company, each Initial Purchaser, each Underwriter, if any, and the other selling
      Holders, and each of their respective directors and officers, and each Person,
      if any, who controls the Company, any of the Initial Purchasers, any Underwriter
      or any other selling Holder within the meaning of Section 15 of the 1933 Act
      or
      Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
      and expense described in the indemnity contained in Section 4(a) hereof, as
      incurred and documented, but only with respect to untrue statements or
      omissions, or alleged untrue statements or omissions, made in the Shelf
      Registration Statement (or any amendment thereto) or any Prospectus included
      therein (or any amendment or supplement thereto) or any Issuer Free Writing
      Prospectus in reliance upon and in conformity with written information with
      respect to such Holder furnished to the Company by or on behalf of such Holder
      expressly for use in the Shelf Registration Statement (or any amendment thereto)
      or such Prospectus (or any amendment or supplement thereto) or any Issuer Free
      Writing Prospectus; provided,
      however,
      that no
      such Holder shall be liable for any claims hereunder in excess of the amount
      of
      net proceeds received by such Holder from the sale of Registrable Securities
      pursuant to such Shelf Registration Statement.


    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    


    (c)    Each
      indemnified party shall give notice as promptly as reasonably practicable to
      each indemnifying party of any action or proceeding commenced against it in
      respect of which indemnity may be sought hereunder, but failure to so notify
      an
      indemnifying party shall not relieve such indemnifying party from any liability
      hereunder to the extent it is not materially prejudiced as a result thereof
      and
      in any event shall not relieve it from any liability which it may have otherwise
      than on account of this indemnity agreement. An indemnifying party may
      participate at its own expense in the defense of such action; provided,
      however,
      that
      counsel to the indemnifying party shall not (except with the consent of the
      indemnified party) also be counsel to the indemnified party. In no event shall
      the indemnifying party or parties be liable for the reasonable and documented
      fees and expenses of more than one counsel (in addition to any local counsel)
      separate from their own counsel for all indemnified parties in connection with
      any one action or separate but similar or related actions in the same
      jurisdiction arising out of the same general allegations or circumstances.
      No
      indemnifying party shall (i) without the prior written consent of the
      indemnified parties (which consent shall not be unreasonably withheld), settle
      or compromise or consent to the entry of any judgment with respect to any
      litigation, or any investigation or proceeding by any governmental agency or
      body, commenced or threatened, or any claim whatsoever in respect of which
      indemnification or contribution could be sought under this Section 4 (whether
      or
      not the indemnified parties are actual or potential parties thereto), unless
      such settlement, compromise or consent (A) includes an unconditional
      release of each indemnified party from all liability arising out of such
      litigation, investigation, proceeding or claim and (B) does not include a
      statement as to or an admission of fault, culpability or a failure to act by
      or
      on behalf of any indemnified party or (ii) be liable for any settlement of
      any such action effected without its prior written consent (which consent shall
      not be unreasonably withheld).

     

    (d)    Notwithstanding
      clause (ii) of Section 4(c), if at any time an indemnified party shall have
      requested an indemnifying party to reimburse the indemnified party for fees
      and
      expenses of counsel, such indemnifying party agrees that it shall be liable
      for
      any settlement of the nature contemplated by Section 4(a)(ii) effected without
      its written consent if (i) such settlement is entered into more than 45 days
      after receipt by such indemnifying party of the aforesaid request, (ii) such
      indemnifying party shall have received notice of the terms of such settlement
      at
      least 30 days prior to such settlement being entered into and (iii) such
      indemnifying party shall not have reimbursed such indemnified party in
      accordance with such request prior to the date of such
      settlement.


    
      
        
        

      

      
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    (e)    If
      the
      indemnification provided for in this Section 4 is for any reason unavailable
      to
      or insufficient to hold harmless an indemnified party in respect of any losses,
      liabilities, claims, damages or expenses referred to therein, then each
      indemnifying party shall contribute to the aggregate amount of such losses,
      liabilities, claims, damages and expenses incurred by such indemnified party,
      as
      incurred, in such proportion as is appropriate to reflect the relative fault
      of
      the Company on the one hand and the Holders and the Initial Purchasers on the
      other hand in connection with the statements or omissions which resulted in
      such
      losses, liabilities, claims, damages or expenses, as well as any other relevant
      equitable considerations.

     

    The
      relative fault of the Company on the one hand and the Holders and the Initial
      Purchasers on the other hand shall be determined by reference to, among other
      things, whether any such untrue or alleged untrue statement of a material fact
      or omission or alleged omission to state a material fact relates to information
      supplied by the Company, or by the Holders or the Initial Purchasers and the
      parties’ relative intent, knowledge, access to information and opportunity to
      correct or prevent such statement or omission.

     

    The
      Company, the Holders and the Initial Purchasers agree that it would not be
      just
      and equitable if contribution pursuant to this Section 4 were determined by
      pro
      rata allocation (even if the Initial Purchasers 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 above in this Section 4. The
      aggregate amount of losses, liabilities, claims, damages and expenses incurred
      and documented by an indemnified party and referred to above in this Section
      4
      shall be deemed to include any legal or other expenses reasonably incurred
      by
      such indemnified party in investigating, preparing or defending against any
      litigation, or any investigation or proceeding by any governmental agency or
      body, commenced or threatened, or any claim whatsoever based upon any such
      untrue or alleged untrue statement or omission or alleged omission.

     

    Notwithstanding
      the provisions of this Section 4, the Initial Purchasers shall not be required
      to contribute any amount in excess of the amount by which the total price at
      which the Securities sold by it were offered exceeds the amount of any damages
      which the Initial Purchasers have 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 1933 Act) shall be entitled to contribution from any Person who was not
      guilty of such fraudulent misrepresentation.

     

    For
      purposes of this Section 4, each Person, if any, who controls any of the Initial
      Purchasers or Holder within the meaning of Section 15 of the 1933 Act or Section
      20 of the 1934 Act shall have the same rights to contribution as the Initial
      Purchaser or Holder, and each director of the Company, and each Person, if
      any,
      who controls the Company within the meaning of Section 15 of the 1933 Act or
      Section 20 of the 1934 Act shall have the same rights to contribution as the
      Company. The obligations of the Company, the Initial Purchasers and the Holders
      pursuant to this Section 4 shall be in addition to any liability that such
      party may otherwise have.


    
      
        
        

      

      
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    5.    Miscellaneous.

     

    5.1   Rule
      144 and Rule 144A.
      For so
      long as the Company is subject to the reporting requirements of Section 13
      or
      15(d) of the 1934 Act, the Company covenants that it will file the reports
      required to be filed by it under Section 13 of 15(d) of the 1934 Act and the
      rules and regulations adopted by the SEC thereunder. If the Company ceases
      to be
      so required to file such reports, the Company covenants that it will upon the
      request of any Holder of Registrable Securities (a) make publicly available
      such
      information as is necessary to permit sales pursuant to Rule 144 under the
      1933
      Act, (b) deliver such information to a prospective purchaser as is necessary
      to
      permit sales pursuant to Rule 144A under the 1933 Act and it will take such
      further action as any Holder of Registrable Securities may reasonably request
      for such purpose, and (c) take such further action that is reasonable in the
      circumstances, in each case, to the extent required from time to time to enable
      such Holder to sell its Registrable Securities without registration under the
      1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
      the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
      under the 1933 Act, as such Rule may be amended from time to time, or (iii)
      any
      similar rules or regulations hereafter adopted by the SEC. Upon the request
      of
      any Holder of Registrable Securities, the Company will deliver to such Holder
      a
      written statement as to whether it has complied with such
      requirements.

     

    5.2   No
      Inconsistent Agreements.
      The
      Company has not entered into and the Company shall not, after the date of this
      Agreement, enter into any agreement which is inconsistent with the rights
      granted to the Holders of Registrable Securities in this Agreement or otherwise
      conflicts with the provisions hereof. The rights granted to the Holders
      hereunder do not and will not for the term of this Agreement in any way conflict
      with the rights granted to the holders of any of the Company’s other issued and
      outstanding securities under any such agreements.

     

    5.3   No
      Adverse Actions Affecting Registration Rights.
      Subject
      to the rights of the Company to invoke and maintain a Suspension Period, the
      Company shall not, directly or indirectly, intentionally take any action with
      respect to the Registrable Securities as a class that would adversely affect
      the
      ability of the Holders of Registrable Securities to include such Registrable
      Securities in a registration undertaken pursuant to this Agreement.

     

    5.4   Amendments
      and Waivers.
      The
      provisions of this Agreement, including the provisions of this sentence, may
      not
      be amended, modified or supplemented, and waivers or consents to departures
      from
      the provisions hereof may not be given unless the Company has obtained the
      written consent of Holders of at least a majority in aggregate principal amount
      of the outstanding Registrable Securities (with Holders of Securities deemed
      to
      be the Holders, for purposes of this Section 5.4, of the number of outstanding
      shares of Common Stock into which such Registrable Securities are or could
      be
      convertible on the date that consent would be required) affected by such
      amendment, modification, supplement, waiver or departure. Notwithstanding the
      foregoing, this Agreement may be amended by a written agreement between the
      Company and the Initial Purchasers, without the consent of the Holders of the
      Registrable Securities, in order to cure any ambiguity or to correct or
      supplement any provision contained herein, provided that no such amendment
      shall
      adversely affect the interest of the Holders of Registrable Securities. Each
      Holder of Registrable Securities outstanding at the time of any amendment,
      modification, waiver or consent pursuant to this Section 5.4, shall be bound
      by
      such amendment, modification, waiver or consent, whether or not any notice
      or
      writing indicating such amendment, modification, waiver or consent is delivered
      to such Holder.


    
      
        
        

      

      
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    5.5   Notices.
      All
      notices and other communications provided for or permitted hereunder shall
      be
      made in writing by hand delivery, registered first-class mail, facsimile, or
      any
      courier guaranteeing overnight delivery (a) if to a Holder, at the most current
      address given by such Holder to the Company in a Questionnaire or by means
      of a
      notice given in accordance with the provisions of this Section 5.5, which
      address initially is the address set forth in the Purchase Agreement with
      respect to the Initial Purchasers; and (b) if to the Company, initially at
      the
      Company’s address set forth in the Purchase Agreement, and thereafter at such
      other address of which notice is given in accordance with the provisions of
      this
      Section 5.5.

     

    All
      such
      notices and communications shall be deemed to have been duly given: at the
      time
      delivered by hand, if personally delivered; two business days after being
      deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
      if sent by facsimile; and on the next business day if timely delivered to an
      overnight courier.

     

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

     

    5.6   Successors
      and Assigns.
      This
      Agreement shall inure to the benefit of and be binding upon the successors,
      assigns and transferees 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 Registrable Securities in violation of the terms of the Purchase
      Agreement or the Indenture. If any transferee of any Holder shall acquire
      Registrable Securities, in any manner, whether by operation of law or otherwise,
      such Registrable Securities shall be held subject to all of the terms of this
      Agreement, and by taking and holding such Registrable Securities such person
      shall be conclusively deemed to have agreed to be bound by and to perform all
      of
      the terms and provisions of this Agreement, 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. The Initial Purchasers
      (in their capacity as Initial Purchasers) shall have no liability or obligation
      to the Company with respect to any failure by a Holder, other than the Initial
      Purchasers, to comply with, or breach by any Holder, other than the Initial
      Purchasers, of, any of the obligations of such Holder under this
      Agreement.

     

    5.7   Third
      Party Beneficiaries.
      The
      Initial Purchasers (even if the Initial Purchasers are not Holders of
      Registrable Securities) shall be a third party beneficiary to the agreements
      made hereunder between the Company, on the one hand, and the Holders, on the
      other hand, and shall have the right to enforce such agreements directly to
      the
      extent it deems such enforcement necessary or advisable to protect its rights
      or
      the rights of Holders hereunder. Each Holder of Registrable Securities shall
      be
      a third party beneficiary 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 it deems such
      enforcement necessary or advisable to protect its rights
      hereunder.


    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    


    5.8   Specific
      Enforcement.
      Without
      limiting the remedies available to the Initial Purchasers and the Holders,
      the
      Company acknowledges that any failure by the Company to comply with its
      obligations under Section 2.1 hereof may result in material irreparable injury
      to the Initial Purchasers or the Holders for which there is no adequate remedy
      at law, that it may not be possible to measure damages for such injuries
      precisely and that, in the event of any such failure, the Initial Purchasers
      or
      any Holder may seek such relief as may be required to specifically enforce
      the
      Company’s obligations under Section 2.1 hereof.

     

    5.9    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.

     

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

     

    5.11   GOVERNING
      LAW.
      THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
      OF
      THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
      GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICT
      OF
      LAW RULES).

     

    5.12   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.

     

    5.13   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 by the Company with respect to the Registrable Securities. This
      Agreement supersedes all prior agreements and understandings between the parties
      with respect to such subject matter.


    
      
        
        

      

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

     

     

    
      
        	 	
                NEW
                  RIVER PHARMACEUTICALS INC.

              
	 	 
	 	 
	 	
                By

              	
                /s/
                  Krish S. Krishnan

              
	 	
                 

              	
                Name:    
                  Krish S. Krishnan

              
	 	 	
                Title:      
                  Chief Operating Officer, Chief Financial Officer and
                  Secretary

              


      

    

    

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    Confirmed
      and accepted as

    of
      the
      date first above written:

     

     

    
      	
              MERRILL
                LYNCH, PIERCE, FENNER & SMITH

            
	
              INCORPORATED

            
	 
	 
	
              By:

            	
              /s/
                Samuel
                Thong

            	 
	 	
              Name:
                Samuel Thong

            	 
	 	
              Title:
                Director