Exhibit
4.24


 


REGISTRATION
RIGHTS AGREEMENT


 


dated as of
[    ], 2008


 


among


 


FOAMEX
INTERNATIONAL INC.


 


and


 


THE SIGNIFICANT
EQUITYHOLDERS NAMED HEREIN


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1. DEFINITIONS

  	
  1

  
	
  1.1.

  	
  Defined Terms

  	
  1

  
	
  1.2.

  	
  General Interpretive Principles

  	
  4

  
	
  SECTION 2. REGISTRATION RIGHTS

  	
  4

  
	
  2.1.

  	
  Shelf Registration

  	
  4

  
	
  2.2.

  	
  Demand Registrations

  	
  6

  
	
  2.3.

  	
  Incidental Registrations

  	
  9

  
	
  2.4.

  	
  Black-out Periods

  	
  10

  
	
  2.5.

  	
  Registration Procedures

  	
  12

  
	
  2.6.

  	
  Underwritten Offerings

  	
  16

  
	
  2.7.

  	
  No Inconsistent Agreements; Additional Rights

  	
  17

  
	
  2.8.

  	
  Registration Expenses

  	
  17

  
	
  2.9.

  	
  Indemnification

  	
  18

  
	
  2.10.

  	
  Rules 144 and 144A

  	
  20

  
	
  SECTION 3. MISCELLANEOUS

  	
  21

  
	
  3.1.

  	
  Existing Registration Statements

  	
  21

  
	
  3.2.

  	
  Term

  	
  21

  
	
  3.3.

  	
  Injunctive Relief

  	
  21

  
	
  3.4.

  	
  Attorneys’ Fees

  	
  21

  
	
  3.5.

  	
  Notices

  	
  21

  
	
  3.6.

  	
  Successors, Assigns and Transferees

  	
  23

  
	
  3.7.

  	
  Governing Law; Service of Process; Consent to
  Jurisdiction

  	
  24

  
	
  3.8.

  	
  Headings

  	
  24

  
	
  3.9.

  	
  Severability

  	
  24

  
	
  3.10.

  	
  Amendment; Waiver

  	
  24

  
	
  3.11.

  	
  Counterparts

  	
  25

  



 

















 


REGISTRATION RIGHTS
AGREEMENT


 


This REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is dated as of [  ], 2008, by and among Foamex International Inc., a Delaware corporation (the “Issuer”), and D. E. Shaw Laminar Portfolios, L.L.C. (“D. E. Shaw”), Sigma Capital Associates, LLC (“Sigma”), CGDO, LLC (as agent on behalf of Chilton Global Distressed Opportunities Master Fund, L.P.) and Q Funding III, L.P. (each, a “Significant Equityholder”).
 
WHEREAS, the Issuer and the Significant Equityholders, severally and not jointly, have entered into an Equity Commitment Agreement, dated April 1, 2008 (the “Equity Commitment Agreement”), pursuant to which the Issuer has agreed to use its reasonable best efforts to consummate an offering to the Issuer’s stockholders as of the record date of rights to purchase shares of Common Stock (the “Rights Offering”) and an offering of shares of Common Stock to the lenders under its second lien term loan facility (the “Second Lien Term Loan Offering”);
 
WHEREAS, the Issuer has entered into Put Option Agreements, dated as of April 1, 2008 (the “Put Option Agreements”), with each of the Significant Equityholders, pursuant to which each of the Significant Equityholders has granted the Issuer an option to require the Significant Equityholder to purchase shares of Common Stock to the extent the Significant Equityholder did not exercise its Rights in the Rights Offering or participate in the Second Lien Term Loan Offering, whether or not such offerings are consummated;
 
WHEREAS, in connection with and pursuant to the Equity Commitment Agreement, the Issuer has agreed with the Significant Equityholders to provide certain rights as set forth herein.
 
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 


SECTION 1.   DEFINITIONS


 


1.1.          Defined
Terms.  As used in this Agreement,
the following terms shall have the following meanings:


 


“Adverse
Disclosure” means public disclosure of material non-public information,
which disclosure in the good faith judgment of the Board of Directors after
consultation with counsel to the Issuer (i) would be required to be made
in any Registration Statement so that such Registration Statement would not be
materially misleading, (ii) would not be required to be made at such time
but for the filing of such Registration Statement and (iii) would have a
material adverse effect on the Issuer or its business or on the Issuer’s
ability to effect a material acquisition, disposition or financing.


 


“Agreement”
has the meaning set forth in the preamble hereto.


 

















 


“Board of Directors” means the Board of Directors of the Issuer.


 


“Common Stock” means the common stock, par value $0.01, of the
Issuer.


 


“Demand
Registration” has the meaning set forth in Section 2.2(a).


 


“Equity
Commitment Agreement” has the meaning set forth in the preamble hereto.


 


“Equity
Cure Letters” means the letters entered into between the Issuer and each of
D. E. Shaw, Sigma and Goldman, Sachs & Co. on February 13, 2008
in connection with the potential cure of certain defaults under the credit
agreements of the Issuer.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended, and any successor thereto, and any rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.


 


“FINRA”
means the Financial Industry Regulatory Authority.


 


“Free Writing Prospectus” means a free writing prospectus, as defined
in Rule 405 under the Securities Act.


 


“holder” or “holders” means any holder or holders of
Registrable Securities who is a party hereto or who otherwise agrees in writing
to be bound by the provisions of this Agreement pursuant to Section 3.6.


 


“Incidental Registration” has the meaning set forth in Section 2.3(a).


 


“Inspector” has the meaning set forth in Section 2.5(a)(xix).


 


“Issuer” has the meaning set forth in the preamble hereto and
shall include the Issuer’s successors by merger, acquisition, reorganization or
otherwise.


 


“Issuer Free Writing Prospectus” means an issuer free writing
prospectus, as defined in Rule 433 under the Securities Act, relating to
an offer of the Registrable Securities.


 


“Significant
Equityholder” has the meaning set forth in the preamble hereto.


 


“Loss”
has the meaning set forth in Section 2.9(a).


 


“Person” means any individual, firm, limited liability company
or partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or
other entity of any kind.


 


“Prospectus” means the prospectus included in any Registration
Statement, all amendments and supplements to such prospectus and all material
incorporated by reference in such prospectus.


 


2

















 


“Put Option Agreements” has the meaning set forth in the
preamble hereto.


 


“Records” has the meaning set forth in Section 2.5(a)(xix).


 


“Registrable Securities” means (i) the shares of Common
Stock, if any, acquired by the Significant Equityholders in connection with the
Rights Offering; (ii) the shares of Common Stock, if any, acquired by the
Significant Equityholders in connection with the Second Lien Term Loan
Offering, (iii) the shares of Common Stock, if any, acquired by the
Significant Equityholders pursuant to the Put Option Agreements, including,
without limitation, the shares of Common Stock, if any, issued in payment of
the Put Option Premium (as defined in the Put Option Agreements); (iv) any
shares of Common Stock acquired by D. E. Shaw or Sigma pursuant to the
conversion of shares of Series D Preferred Stock, par value $0.01 per
share, of the Issuer; (v) any other shares of Common Stock held by the
Significant Equityholders; and (vi) any securities that may be issued or
distributed or be issuable to the Significant Equityholders in respect of the
foregoing by way of stock dividend, stock split or other distribution, merger,
consolidation, exchange offer, recapitalization or reclassification or similar
transaction or exercise or conversion of any of the foregoing; provided,
however, that any of the foregoing securities listed in the preceding
clauses (i) through (vi) shall cease to be “Registrable Securities”
to the extent (i) a Registration Statement with respect to their sale has
become effective under the Securities Act and they have been disposed of
pursuant to such Registration Statement, (ii) they have been distributed
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, (iii) they may be publicly resold (without volume or
method of sale restrictions) without registration under the Securities Act or (iv) they
have ceased to be outstanding.  For
purposes of this Agreement, a “class” of Registrable Securities shall mean all
Securities with the same terms and a “percentage” (or a “majority”) of the
Registrable Securities (or, where applicable, of any other securities) shall be
determined (x) based on the number of shares of such securities, in the
case of Registrable Securities which are equity securities, and (y) based
on the principal amount of such securities, in the case of Registrable
Securities which are debt securities.


 


“registration” means a registration of the Issuer’s securities
for sale to the public under a Registration Statement.


 


“Registration Statement” means any registration statement of the
Issuer filed with, or to be filed with, the SEC under the rules and
regulations promulgated under the Securities Act, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.


 


“Rights Offering” has the meaning set forth in the preamble
hereto.


 


“SEC”
means the Securities and Exchange Commission.


 


“Second Lien Term Loan Offering” has the meaning set forth in
the preamble hereto.


 


3

















 


“Securities Act” means the Securities Act of 1933, as amended,
and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.


 


“Shelf Registration” means a registration effected pursuant to Section 2.1.


 


“Shelf Registration Statement” means a Registration Statement of
the Issuer filed with the SEC on Form S-3 or Form S-3ASR (or any
successor form or other appropriate form under the Securities Act) for an
offering to be made on a continuous or delayed basis pursuant to Rule 415
under the Act (or any similar rule that may be adopted by the SEC)
covering the Registrable Securities.


 


“Underwritten Offering” means a registration in which securities
of the Issuer are sold to an underwriter or underwriters on a firm commitment
basis for reoffering to the public.


 


“Valid Business Reason” has the meaning set forth in Section 2.2(e).


 


1.2.          General
Interpretive Principles.  Whenever
used in this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural
as well as the singular and to cover all genders.  The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall
not be construed to affect the meaning, construction or effect hereof.  Unless otherwise specified, the terms “hereof,”
“herein,” “hereunder” and similar terms refer to this Agreement as a whole
(including the exhibits, schedules and disclosure statements hereto), and
references herein to Sections refer to Sections of this Agreement.


 


SECTION 2.   REGISTRATION
RIGHTS


 


2.1.          Shelf Registration.


 


(a)           Filing.  Subject to Section 2.1(c), if the Issuer
becomes eligible to file a registration statement on Form S-3 or Form S-3ASR
(or any successor form) in respect of any class of Registrable Securities, it
shall promptly notify the holders of such eligibility, and within 60 days
following the request of any holder or holders holding at least 25% of any such
class, the Issuer shall file with the SEC a Shelf Registration Statement
relating to the offer and sale of any Registrable Securities held by the
holders thereof from time to time in accordance with the methods of
distribution elected by such holders and shall use its reasonable best efforts
to cause such Shelf Registration Statement to become effective under the
Securities Act.


 


(b)           Continued
Effectiveness.  Subject to Section 2.1(c),
the Issuer shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming a
part thereof to be usable by the holders during the term of this
Agreement.  The Issuer shall not be deemed to have used its reasonable best efforts
to keep the Shelf Registration Statement effective if the Issuer voluntarily
takes any action or omits to take any action that would result in the inability
of any holder of Registrable Securities covered by such Registration Statement
to be able to offer and sell any such Registrable Securities during the term of
this Agreement, unless such action or omission is required by applicable law.


 


4

















 


(c)           Suspension
of Registration.  If the filing,
initial effectiveness or continued use of the Shelf Registration Statement at
any time would require the Issuer to make an Adverse Disclosure or, if in the
good faith judgment of the Board of Directors, there exists a Valid Business
Reason, the Issuer may, upon giving prompt written notice of such action to the
holders, delay the filing or initial effectiveness of, or suspend use of, the
Shelf Registration Statement; provided, however, that the Issuer
shall not be permitted to do so (A) more than one time during any
three-month period, (B) for a period exceeding 45 days on any one occasion
or (C) for a period exceeding 90 days in any 12-month period.  In the event the Issuer exercises its rights
under the preceding sentence, the holders agree to suspend, immediately upon
their receipt of the notice referred to above, their use of the Prospectus
relating to the Shelf Registration and any Issuer Free Writing Prospectuses in
connection with any sale or offer to sell Registrable Securities.  The Issuer shall immediately notify the
holders upon the expiration of any period during which it exercised its rights
under this Section 2.1(c).  The
Issuer represents that it currently has no knowledge of any circumstance that
would reasonably be expected to cause the Issuer to exercise its rights under
this Section 2.1(c).


 


(d)           Underwritten
Offering.  If the holders of not less
than a majority of any class of Registrable Securities included in any offering
pursuant to the Shelf Registration Statement so elect, such offering shall be
in the form of an Underwritten Offering and the Issuer, if necessary, shall use
its reasonable best efforts to amend or supplement the Shelf Registration
Statement for such purpose.  The Issuer,
after consulting with the holders of a majority of the class of Registrable
Securities to be included in such Underwritten Offering, shall have the right
to select the managing underwriter or underwriters for the offering.  If the managing underwriter or underwriters
of any such proposed Underwritten Offering informs the holders of Registrable
Securities of any class sought to be included in such registration in writing
that, in its or their opinion, the total amount or kind of securities which
such holders and any other Persons intend to include in such offering exceeds
the number or amount which can be sold in such offering without being likely to
have a significant adverse effect on the price, timing or distribution of the
class or classes of the securities offered or the market for the class or
classes of securities offered, then the securities of each class to be included
in such registration shall be allocated as follows:


 


(i)            first, pro
rata among the holders which have requested participation in such
Underwritten Offering (based, for each such holder, on the percentage derived
by dividing (x) the number or amount of Registrable Securities of such
class which such holder has requested to include in such Underwritten Offering
by (y) the aggregate number or amount of Registrable Securities of such
class which all such holders have requested to include);


 


(ii)           second, and only
if all the securities referenced in clause (i) have been included, any
other securities of the Issuer requested by the holders thereof to included in
such registration that, in the opinion of such underwriter or underwriters, can
be sold without having such adverse effect shall be included therein, with such
number to be allocated pro  rata among such holders (based, for
each such holder, on the percentage derived by dividing (x) the number or
amount of such securities of such class which such holder has requested to
include in such registration by (y) the aggregate number or amount of
securities of such class which all such holders have requested to include); and


 


5

















 


(iii)          third, and only if
all of the Registrable Securities referenced in clauses (i) and (ii) have
been included and in the opinion of such underwriter or underwriters such
securities can be sold without having such adverse effect, securities offered
by the Issuer for its own account.


 


2.2.          Demand Registrations.


 


(a)           Demand
by Holders.  (i)  At any time
the holders of not less than 25% percent of any class of the Registrable
Securities may make a written request to the Issuer for registration of all or
part of the Registrable Securities held by such holders, provided that at least
25% of such class shall be so registered. 
Additionally, any Significant Equityholder may make a written request to
the Issuer for registration of all or part of the Registrable Securities held
by such Significant Equityholder and its affiliates if at the time of the
written request such Significant Equityholder and its affiliates hold not less
than 75% of the Registrable Securities they held immediately following the
closing of the Rights Offering.  Any such
requested registration shall hereinafter be referred to as a “Demand
Registration.”  Each request for a
Demand Registration shall specify the aggregate amount of Registrable
Securities to be registered and the intended methods of disposition thereof.


 


(ii)  Within ten days following receipt of any request for a
Demand Registration, the Issuer shall deliver written notice of such request to
all other holders of Registrable Securities of the class or classes to be
registered.  Thereafter, the Issuer shall
include in such Demand Registration any additional Registrable Securities of
each such class which the holder or holders thereof have requested in writing
be included in such Demand Registration, provided that all requests therefor
have been received by the Issuer within ten days of the Issuer’s having sent
the applicable notice to such holder or holders.  The failure of any such holder to respond
within such ten-day period shall be deemed to be a waiver of such holder’s
rights under Section 2.2(a)(ii) with respect to such Demand
Registration.  All such requests shall
specify the aggregate amount and class of Registrable Securities to be
registered and the intended method of distribution of the same.


 


(iii)  As promptly as practicable (and, in any event, within 60
days) following receipt of a request for a Demand Registration, the Issuer
shall file a Registration Statement relating to such Demand Registration and
shall use its reasonable best efforts to cause such Registration Statement to
become effective under the Securities Act.


 


(b)           Limitation
on Demand Registrations.  In no event
shall the Issuer be required to effect more than three Demand Registrations.


 


(c)           Demand
Withdrawal.  A holder may withdraw
its Registrable Securities from a Demand Registration at any time.  If all such holders do so, the Issuer shall
cease all efforts to secure registration and such registration nonetheless
shall be deemed a Demand Registration for purposes of Section 2.2(b) unless
(i) the withdrawal is based on the reasonable determination of the holders
who requested such registration that there has been, since the date of such
request, a material adverse change in the business or prospects of the Issuer
or (ii) the holders who requested such registration shall have paid or reimbursed
the Issuer for all of the 


 


6

















 


reasonable out-of-pocket fees and expenses incurred by
the Issuer in connection with the withdrawn registration.


 


(d)           Effective
Registration.  The Issuer shall be
deemed to have effected a Demand Registration if the applicable Registration
Statement becomes effective and remains effective for not less than 180 days
(or such shorter period as will terminate when all Registrable Securities
covered by such Registration Statement have been sold or withdrawn), or, if
such Registration Statement relates to an Underwritten Offering, such longer
period as, in the opinion of counsel for the underwriter or underwriters, is
required by law for the delivery of a Prospectus in connection with the sale of
Registrable Securities by an underwriter or dealer.  No Demand Registration shall be deemed to
have been effected if an Underwritten Offering is contemplated by such Demand
Registration and the conditions to closing specified in the applicable
underwriting agreement are not satisfied by reason of a wrongful act,
misrepresentation or breach of such underwriting agreement or this Agreement by
the Issuer.


 


(e)           Suspension
of Registration.  If the filing,
initial effectiveness or continued use of a Registration Statement in respect
of a Demand Registration at any time would require the Issuer to make an
Adverse Disclosure or, if in the good faith judgment of the Board of Directors,
it would materially interfere with any material financing, acquisition,
corporate reorganization or merger or other material transaction involving the
Issuer (a “Valid Business Reason”), the Issuer may, upon giving prompt
written notice of such action to the holders, delay the  filing
or  initial effectiveness of, or  suspend use of, the such Registration Statement; provided,
however, that the Issuer shall not be permitted to do so (A) more
than one time during any three-month period, (B) for a period exceeding 45
days on any one occasion or (C) for a period exceeding 90 days in any
12-month period.  In the event the Issuer
exercises its rights under the preceding sentence, the holders agree to
suspend, immediately upon their receipt of the notice referred to above, their
use of the Prospectus relating to the Demand Registration and any Issuer Free
Writing Prospectus in connection with any sale or offer to sell Registrable
Securities.  The Issuer shall immediately
notify the holders of the expiration of any period during which it exercised
its rights under this Section 2.2(e). 
The Issuer represents that it currently has no knowledge of any
circumstance that would reasonably be expected to cause the Issuer to exercise
its rights under this Section 2.2(e).


 


(f)            Underwritten
Offering.  If the holders of not less
than a majority of the Registrable Securities of any class which are included
in any offering pursuant to a Demand Registration so elect, the Issuer shall
use its reasonable best efforts to cause such offering to be in the form of an
Underwritten Offering.  The Issuer, after
consulting with the holders of a majority of the class of Registrable
Securities to be included in such Underwritten Offering, shall have the right
to select the managing underwriter or underwriters for the offering.


 


(g)           Priority
of Securities Registered Pursuant to Demand Registrations.  If the managing underwriter or underwriters
of a proposed Underwritten Offering of a class of Registrable Securities
included in a Demand Registration (or, in the case of a Demand Registration not
being underwritten, the holders of a majority of a class of Registrable
Securities included in such Registration Statement), inform the holders of such
Registrable Securities in writing that, in its or their opinion, the number or
amount of securities of such class requested to be included in such Demand
Registration exceeds the number or amount which can be sold in 


 


7

















 


such offering without being likely to have a
significant adverse effect on the price, timing or distribution of the class of
securities offered or the market for the class of securities offered, the
number or amount of Registrable Securities of such class that can be included
without having such an adverse effect shall be allocated:


 


(i)            first, pro
rata among the holders which have requested participation in the Demand
Registration (based, for each such holder, on the percentage derived by
dividing (x) the number or amount of Registrable Securities of such class
which such holder has requested to include in such Demand Registration by (y) the
aggregate number or amount of Registrable Securities of such class which all
such holders have requested to include);


 


(ii)           second, and only
if all the securities referenced in clause (i) have been included, any
other securities of the Issuer requested by the holders thereof to included in
such registration that, in the opinion of such underwriter or underwriters, can
be sold without having such adverse effect shall be included therein, with such
number to be allocated pro  rata among such holders (based, for
each such holder, on the percentage derived by dividing (x) the number or
amount of such securities of such class which such holder has requested to
include in such registration by (y) the aggregate number or amount of securities
of such class which all such holders have requested to include); and


 


(iii)          third, and only
if all of the Registrable Securities referenced in clauses (i) and (ii) have
been included and in the opinion of such underwriter or underwriters such securities
can be sold without having such adverse effect securities offered by the Issuer
for its own account.


 


To the extent that any Registrable
Securities requested to be registered are excluded pursuant to the foregoing,
the holders thereof shall have the right to one additional Demand Registration
under this Section 2.2.


 


(h)           Registration
Statement Form.  Registrations under
this Section 2.2 shall be on such appropriate registration form of the SEC
(i) as shall be selected by the Issuer and as shall be reasonably
acceptable to the holders of a majority of each class of Registrable Securities
requesting participation in the Demand Registration and (ii) as shall
permit the disposition of the Registrable Securities in accordance with the
intended method or methods of disposition specified in the applicable holders’
requests for such registration.  Notwithstanding the
foregoing, if, pursuant to a Demand Registration, (x) the Issuer proposes
to effect registration by filing a Registration Statement on Form S-3 or Form S-3ASR
(or any successor or similar short-form registration statement), (y) such
registration is in connection with an Underwritten Offering and (z) the
managing underwriter or underwriters shall advise the Issuer in writing that,
in its or their opinion, the use of another form of registration statement (or
the inclusion, rather than the incorporation by reference, of information in
the Prospectus related to a Registration Statement on Form S-3 or Form S-3ASR
(or other short-form registration statement)) is of material importance to the
success of such proposed offering, then such registration shall be effected on
such other form (or such information shall be so included in such Prospectus); provided,
however, that the Issuer shall not be required to use any form that it
reasonably believes, based 


 


8

















 


on the advice of legal counsel, that it is not
eligible to use and that no Demand Registration shall be effected using a Form S-4
or a Form S-8 or any successor form thereto.


 


2.3.          Incidental
Registrations.


 


(a)           Participation.  (i)  If the Issuer at any time proposes
to file a Registration Statement with respect to any offering of its securities
for its own account or for the account of any holders of its securities (other
than (A) a registration under Section 2.1 or Section 2.2 hereof,
(B) a registration on Form S-4 or S-8 or any successor form to such
forms or (C) a registration of securities solely relating to an offering
and sale to employees or directors of the Issuer pursuant to any employee stock
plan or other employee benefit plan arrangement), then, as soon as practicable
(but in no event less than 20 days prior to the proposed date of filing such
Registration Statement), the Issuer shall give written notice of such proposed
filing to all holders of Registrable Securities that are equity securities (in
the case of a sale of equity securities, including securities convertible into
equity securities) or of Registrable Securities that are debt securities (in
the case of a sale of debt securities), and such notice shall offer the holders
of such Registrable Securities the opportunity to register such number or
amount of Registrable Securities as each such holder may request in writing (an
“Incidental Registration”). 
Subject to Section 2.3(b), the Issuer shall include in such
Registration Statement all such Registrable Securities which are requested to
be included therein within 10 days after the receipt by such holder of any such
notice.  The failure of any such holder
to respond within such ten-day period shall be deemed to be a waiver of such
holder’s rights under this Section 2.3(a) with respect to such
Incidental Registration.  If at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the Registration Statement filed in connection
with such registration, the Issuer shall determine for any reason not to
register or to delay registration of such securities, the Issuer may, at its
election, give written notice of such determination to each holder of
Registrable Securities and, (x) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration, and (y) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities.


 


(ii)           If
the offering pursuant to an Incidental Registration is to be an Underwritten
Offering, then each holder making a request for its Registrable Securities to
be included therein must, and the Issuer shall use its reasonable best efforts
to make such arrangements with the underwriters so that each such holder may,
participate in such Underwritten Offering on the same terms as the Issuer and
other Persons selling securities in such Underwritten Offering.  If the offering pursuant to such registration
is to be on any other basis, then each holder making a request for an
Incidental Registration pursuant to this Section 2.3(a) must
participate in such offering on such basis. 
In connection with any Incidental Registration under Section 2.3
that is an Underwritten Offering, the Issuer shall not be required to include any
Registrable Securities in such Underwritten Offering unless the participating
holders thereof accept the terms of the Underwritten Offering provided in Section 2.6(a),
and then only in such quantity as set forth in Section 2.3(b).


 


(iii)          Each
holder of Registrable Securities shall be permitted to withdraw, by written
notice to the Issuer, all or part of such holder’s Registrable Securities from
an Incidental 


 


9

















 


Registration at any time; provided, however,
that, except in the case of a withdrawal pursuant to Section 2.6(b), the
Issuer shall be entitled to reimbursement from the holder of such withdrawn
Registrable Securities for any SEC registration fees incurred by the Issuer in
connection with the registration of such Registrable Securities.


 


(b)           Priority
of Incidental Registration.  If the
managing underwriter or underwriters of any proposed Underwritten Offering of a
class of securities included in an Incidental Registration (or in the case of
an Incidental Registration not being underwritten, the Issuer) informs the
holders of Registrable Securities of any class sought to be included in such
registration in writing that, in its or their opinion, the total amount or kind
of securities which such holders and any other Persons intend to include in
such offering exceeds the number or amount which can be sold in such offering
without being likely to have a significant adverse effect on the price, timing
or distribution of the class or classes of the securities offered or the market
for the class or classes of securities offered, then the securities of each
class to be included in such registration shall be allocated as follows:


 


(i)            first,
100% of the securities that the Issuer or (subject to Section 2.7) any Person
(other than a holder of Registrable Securities) exercising a contractual right
to demand registration has proposed to sell shall be included therein;


 


(ii)           second,
and only if all the securities referenced in clause (i) have been
included, the number or amount of Registrable Securities of such class that, in
the opinion of such underwriter or underwriters (or in the case of an
Incidental Registration not being underwritten, the Issuer), can be sold
without having such adverse effect shall be included therein, with such number
or amount to be allocated pro  rata among the holders which have
requested participation in the Incidental Registration (based, for each such
holder, on the percentage derived by dividing (x) the number or amount of
Registrable Securities of such class which such holder has requested to include
in such Incidental Registration by (y) the aggregate number or amount of
Registrable Securities of such class which all such holders have requested to
include); and


 


(iii)          third, and only if all of the
Registrable Securities referenced in clauses (i) and (ii) have been
included, any other securities eligible for inclusion in such registration
shall be included therein.


 


2.4.          Black-out Periods.


 


(a)           Black-out
Periods for Holders.  In the event of
a registration by the Issuer involving the offering and sale by the Issuer of
equity securities or securities convertible into or exchangeable for its equity
securities, the holders of Registrable Securities agree, if requested by the
Issuer (or, in the case of an Underwritten Offering, by the managing
underwriter or underwriters), not to effect any public sale or distribution of
any securities (except, in each case, as part of the applicable registration,
if permitted) which securities are the same as or similar to those being
registered in connection with such registration, or which are convertible into
or 


 


10

















 


exchangeable or exercisable for such securities, and
not to offer to sell, contract to sell (including, without limitation, any
short sale), grant any option to purchase or enter into any hedging or similar
transaction with the same economic effect as a public sale or distribution of
any such securities, during the period beginning seven days before, and ending
90 days (or such lesser period as may be permitted by the Issuer or such
managing underwriter or underwriters) after, the effective date of the
Registration Statement filed in connection with such registration, to the
extent such holders are timely notified in writing by the Issuer or the
managing underwriter or underwriters; provided, however, that nothing in this Section 2.4(a) shall
prohibit any sale of, or other transaction relating to, Registrable
Securities pursuant to Rule 144 under the Securities Act (or any similar
provision then in force).


 


(b)           Black-out
Period for the Issuer and Others.  (i) In the case of a
registration of a class of Registrable Securities pursuant to Section 2.1
or 2.2 involving the offering and sale of equity securities or securities
convertible into or exchangeable for equity securities, the Issuer agrees, if
requested by the holders of a majority of such class of Registrable Securities
to be sold pursuant to such registration (or, in the case of an Underwritten Offering,
by the managing underwriter or underwriters in such Underwritten Offering), not
to effect (or register for sale)
any public sale or distribution of any securities which are the same as or
similar to those being registered, or which are convertible into or
exchangeable or exercisable for such securities, and not to offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or enter into any hedging or similar transaction with the
same economic effect as a public sale or distribution of any such securities,
during the period beginning seven days before, and ending 90 days (or such
lesser period as may be permitted by such holders or such underwriter or
underwriters) after, the effective date of the Registration Statement filed in
connection with such registration (or, in the case of an Underwritten Offering
under the Shelf Registration, the date of the closing under the underwriting
agreement in connection therewith), to the extent the Issuer is timely notified
in writing by a holder of Registrable Securities covered by such Registration
Statement or the managing underwriter or underwriters.  Notwithstanding the foregoing, the Issuer may
effect a public sale or distribution of securities of the type described above
and during the periods described above if the same (A) is made pursuant to
registrations on Forms S-4 or S-8 or any successor form to such forms or (B) as
part of any registration of securities for offering and sale to employees or
directors of the Issuer pursuant to any employee stock plan or other employee
benefit plan arrangement.


 


(ii)           Subject to Section 2.7, if after the date hereof the Issuer grants
any Person (other than a holder of Registrable Securities) any rights to demand
or participate in a registration, the Issuer agrees that the agreement with
respect thereto shall include such Person’s agreement not to effect any public
sale or distribution of the securities subject to such agreement (other than
securities purchased in a public offering), or securities that are
convertible into or exchangeable or exercisable for such securities, and not to
offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or enter into any hedging or similar
transaction with the same economic effect as a public sale or distribution of
any such securities, during any period
referred to in this Section 2.4(b).


 


11














 


2.5.          Registration Procedures.


 


(a)           In connection with the Issuer’s
registration obligations in this Agreement, the Issuer will, subject to the
limitations set forth herein, use its reasonable best efforts to effect any
such registration so as to permit the sale of the applicable Registrable
Securities in accordance with the intended method or methods of distribution
thereof as expeditiously as reasonably practicable, and in connection therewith
the Issuer will:


 


(i)            before filing a Registration Statement, Prospectus
or any Issuer Free Writing Prospectus, or any amendments or supplements thereto
and in connection therewith, furnish to the underwriter or underwriters, if
any, and to holders of a majority of each class of Registrable Securities
covered by such Registration Statement, copies of all documents prepared to be
filed, which documents will be subject to the review of such underwriters and
such holders and their respective counsel and, except in the case of a
registration under Section 2.3, not file any Registration Statement or
Prospectus or amendments or supplements thereto to which the holders of a
majority of the class of Registrable Securities covered by the same or the
underwriter or underwriters, if any, shall reasonably object;


 


(ii)           prepare and file with the SEC such
amendments or supplements to the applicable Registration Statement, Prospectus
or any Issuer Free Writing Prospectus as may be (A) reasonably requested
by any participating holder (to the extent such request relates to information
relating to such holder), (B) necessary to keep such registration
effective for the period of time required by this Agreement or (C) reasonably
requested by the holders of a majority of any class of the participating
Registrable Securities;


 


(iii)          notify the selling holders of Registrable
Securities and the managing underwriter or underwriters, if any, and (if
requested) confirm such advice in writing, as soon as reasonably practicable
after notice thereof is received by the Issuer (A) when the applicable Registration
Statement or any amendment thereto has been filed or becomes effective and when
the applicable Prospectus or any Issuer Free Writing Prospectus or any
amendment or supplement thereto has been filed, (B) of any written
comments by the SEC or any request by the SEC or any other federal or state
governmental authority for amendments or supplements to any such Registration
Statement, Prospectus or Free Writing Prospectus or for additional information,
(C) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or any order or notice preventing
or suspending the use of any preliminary or final Prospectus or any Issuer Free
Writing Prospectus or the initiation or threat of any proceedings for such
purposes and (D) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification of the Registrable Securities
for offering or sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose;


 


(iv)          promptly notify each selling holder of
Registrable Securities and the managing underwriter or underwriters, if any,
when the Issuer becomes aware of the happening of any event as a result of
which the applicable Registration Statement, Prospectus (as then in effect) or
any Issuer Free Writing Prospectus contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein
(in the case of a Prospectus or Issuer Free Writing Prospectus, in the light of
the circumstances under which they were made) not misleading, when any Issuer
Free Writing Prospectus includes information that 


 


12

















 


may conflict with the information contained in the
Registration Statement, or, if for any other reason it shall be necessary to
amend or supplement any such Registration Statement, Prospectus or Issuer Free
Writing Prospectus in order to comply with the Securities Act and, in either
case, subject to Sections 2.1(c) and 2.2(e), as promptly as reasonably
practicable thereafter, prepare and file with the SEC an amendment or
supplement to such Registration Statement, Prospectus or Free Writing
Prospectus which will correct such statement or omission or effect such
compliance;


 


(v)           make every reasonable effort to prevent
or obtain at the earliest possible moment the withdrawal of any stop order with
respect to the applicable Registration Statement or other order or notice
preventing or suspending the use of any preliminary or final Prospectus or any
Issuer Free Writing Prospectus;


 


(vi)          promptly incorporate in a Prospectus
supplement, Issuer Free Writing Prospectus or post-effective amendment to the
applicable Registration Statement such information as the managing underwriter
or underwriters, if any, or the holders of a majority of the Registrable
Securities of the class being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, and make,
subject to Sections 2.1(c) and 2.2(e), all required filings of such
Prospectus supplement, Issuer Free Writing Prospectus or post-effective
amendment as soon as reasonably practicable after being notified of the matters
to be incorporated in such Prospectus supplement, Issuer Free Writing Prospectus
or post-effective amendment;


 


(vii)         furnish to each selling holder of
Registrable Securities and each managing underwriter, if any, without charge,
as many conformed copies as such holder or managing underwriter may reasonably
request of the applicable Registration Statement;


 


(vii)         deliver to each selling holder of
Registrable Securities and each managing underwriter, if any, without charge,
as many copies of the applicable Prospectus (including each preliminary
Prospectus) and any Issuer Free Writing Prospectus as such holder or managing
underwriter may reasonably request (it being understood that the Issuer
consents to the use of the Prospectus and any Issuer Free Writing Prospectus by
each of the selling holders of Registrable Securities and the underwriter or
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered thereby) and such other documents as such
selling holder or managing underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities by such holder or
underwriter;


 


(ix)           on or prior to the date on which the
applicable Registration Statement becomes effective, use its reasonable best
efforts to register or qualify such Registrable Securities for offer and sale
under the securities or “Blue Sky” laws of each state and other jurisdiction of
the United States, as any such selling holder or underwriter, if any, or their
respective counsel reasonably requests in writing, and do any and all other
acts or things reasonably necessary or advisable to keep such registration or
qualification in effect so as to permit the commencement and continuance of
sales and dealings in such jurisdictions for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement; provided, however, that the Issuer will
not be required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action 


 


13

















 


which would subject it to taxation or general service
of process in any such jurisdiction where it is not then so subject;


 


(x)            cooperate with the selling holders of
Registrable Securities and the managing underwriter, underwriters or agent, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends;


 


(xi)           use its reasonable best efforts to cause
the Registrable Securities covered by the applicable 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 or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Securities;


 


(xii)          not later than the effective date of the
applicable Registration Statement, provide a CUSIP number for all Registrable
Securities and provide the applicable transfer agent with printed certificates
for the Registrable Securities which certificates shall be in a form eligible
for deposit with The Depository Trust Company;


 


(xiii)         obtain for delivery to the holders of
each class of Registrable Securities being registered and to the underwriter or
underwriters, if any, an opinion or opinions from counsel for the Issuer dated
the effective date of the Registration Statement or, in the event of an
Underwritten Offering, the date of the closing under the underwriting
agreement, in customary form, scope and substance, which counsel and opinions
shall be reasonably satisfactory to a majority of the holders of each such
class and underwriter or underwriters, if any, and their respective counsel;


 


(xiv)        in the case of an Underwritten Offering,
obtain for delivery to the Issuer and the underwriter or underwriters, if any,
with copies to the holders of Registrable Securities included in such
registration, cold comfort letters from the Issuer’s independent certified
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the managing underwriter or
underwriters reasonably request;


 


(xv)         cooperate with each seller of Registrable
Securities and each underwriter or agent, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with FINRA;


 


(xvi)        use its reasonable best efforts to comply
with all applicable rules and regulations of the SEC and make generally
available to its security holders, as soon as reasonably practicable (but not
more than 15 months) after the effective date of the applicable Registration
Statement, an earnings statement satisfying the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;


 


(xvii)       provide and cause to be maintained a
transfer agent and registrar for all Registrable Securities covered by the
applicable Registration Statement from and after a date not later than the
effective date of such Registration Statement;


 


14

















 


(xviii)      cause all Registrable Securities of a
class covered by the applicable Registration Statement to be listed or quoted
on each securities exchange on which any of the Issuer’s securities of such
class are then listed or quoted and on each inter-dealer quotation system on
which any of the Issuer’s securities of such class are then quoted;


 


(xix)         make available upon reasonable notice at
reasonable times and for reasonable periods for inspection by a representative
appointed by the holders of a majority of the Registrable Securities of each
class covered by the applicable Registration Statement, by any managing
underwriter or underwriters participating in any disposition to be effected pursuant
to such Registration Statement and by any attorney, accountant or other agent
retained by such sellers or any such managing underwriter (each an “Inspector”,
and collectively, the “Inspectors”), all pertinent financial and other
records, pertinent corporate documents and properties of the Issuer
(collectively, the “Records”), and cause all of the Issuer’s officers,
directors and employees and the independent public accountants who have
certified its financial statements to make themselves reasonably available to
discuss the business of the Issuer and to supply all information reasonably
requested by the Inspectors in connection with such Registration Statement as
shall be necessary to enable them to exercise their due diligence
responsibility; provided that Records that the Issuer determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors (and the Inspectors shall
confirm their agreement in writing in advance to the Issuer if the Issuer shall
so request) unless (a) the disclosure of such Records is necessary, in the
Issuer’s judgment, to avoid or correct a misstatement or omission in the
Registration Statement, (b) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction
after exhaustion of all appeals therefrom or (c) the information in such
Records was known to the Inspectors on a non-confidential basis prior to its
disclosure by the Issuer or has been made generally available to the
public.  Each seller of Registrable
Securities agrees that it shall, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the Issuer and
allow the Issuer, at the Issuer’s expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential.  In the event that the Issuer is unsuccessful
in preventing the disclosure of such Records, such seller agrees that it shall
furnish only that portion of those Records which it is advised by counsel is
legally required and shall exercise all reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded to those Records;


 


(xx)          in the case of an Underwritten Offering,
cause the senior executive officers of the Issuer to participate in the
customary “road show” presentations that may be reasonably requested by the
managing underwriter in any such Underwritten Offering and otherwise to
facilitate, cooperate with, and participate in, each proposed offering
contemplated herein and customary selling efforts related thereto; and


 


(xxi)         promptly after the issuance of an
earnings release or upon the request of any holder, prepare a current report on
Form 8-K with respect to such earnings release or a matter of disclosure
as requested by such holder and file such Form 8-K with the SEC.


 


(b)           The Issuer may require each selling
holder of Registrable Securities as to which any registration is being effected
to furnish to the Issuer such information regarding the distribution of such
Securities and such other information relating to such holder and its 


 


15

















 


ownership of the applicable Registrable Securities as
the Issuer may from time to time reasonably request.  Each holder of Registrable Securities agrees
to furnish such information to the Issuer and to cooperate with the Issuer as
necessary to enable the Issuer to comply with the provisions of this Agreement.  The Issuer shall have the right to exclude
any holder that does not comply with the preceding sentence from the applicable
registration.


 


(c)           Each holder of Registrable Securities
agrees by acquisition of such Registrable Securities that, upon receipt of any
notice from the Issuer of the happening of any event of the kind described in Section 2.5(a)(iv),
such holder will discontinue disposition of its Registrable Securities pursuant
to such Registration Statement until such holder’s receipt of the copies of the
supplemented or amended Prospectus or Issuer Free Writing Prospectus, as the
case may be, contemplated by Section 2.5(a)(iv), or until such holder is
advised in writing by the Issuer that the use of the Prospectus or Issuer Free
Writing Prospectus, as the case may be, may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus or such Issuer Free Writing Prospectus or any amendments or
supplements thereto and, if so directed by the Issuer, such holder will deliver
to the Issuer (at the Issuer’s expense) all copies, other than permanent file
copies then in such holder’s possession, of the Prospectus or any Issuer Free
Writing Prospectus covering such Registrable Securities which are current at
the time of the receipt of such notice. 
In the event that the Issuer shall give any such notice in respect of a
Demand Registration, the period during which the applicable Registration
Statement is required to be maintained effective shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement either receives the copies of
the supplemented or amended Prospectus or Issuer Free Writing Prospectus
contemplated by Section 2.5(a)(iv) or is advised in writing by the
Issuer that the use of the Prospectus or Issuer Free Writing Prospectus may be
resumed.


 


(d)           Each holder of Registrable Securities
agrees by acquisition of such Registrable Securities that it will not use any
Free Writing Prospectus relating to the offer or sale of such securities
without the prior written consent of the Issuer, which shall not be
unreasonably withheld or delayed.


 


2.6.          Underwritten Offerings.


 


(a)           Underwriting Agreements. 
If requested by the underwriters for any Underwritten Offering requested
by holders pursuant to Section 2.1 or 2.2, the Issuer and the holders of
Registrable Securities to be included therein shall enter into an underwriting
agreement with such underwriters, such agreement to be reasonably satisfactory
in substance and form to the Issuer, the holders of a majority of each class of
the Registrable Securities to be included in such Underwritten Offering and the
underwriters, and to contain such terms and conditions as are generally
prevailing in agreements of that type, including, without limitation,
indemnities no less favorable to the recipient thereof than those provided in Section 2.9.  The holders of any Registrable Securities to
be included in any Underwritten Offering pursuant to Section 2.3 shall
enter into such an underwriting agreement at the request of the Issuer.  All of the representations and warranties by,
and the other agreements on the part of, the Issuer to and for the benefit of
such underwriters included in each such underwriting agreement shall also be
made to and for the benefit of such holders and any or all of the conditions
precedent to the 


 


16

















 


obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders.  No holder shall be required in
any such underwriting agreement to make any representations or warranties to,
or agreements with, the Issuer or the underwriters other than representations,
warranties or agreements regarding such holder, such holder’s Registrable
Securities, such holder’s intended method of distribution and any other
representations required by law.


 


(b)           Price and Underwriting Discounts. 
In the case of an Underwritten Offering requested by holders pursuant to
Section 2.1 or 2.2, the price, underwriting discount and other financial
terms for each class of Registrable Securities of the related underwriting
agreement shall be determined by the holders of a majority of such class of
Registrable Securities included in such Underwritten Offering.  In the case of any Underwritten Offering
pursuant to Section 2.3, such price, discount and other terms shall be
determined by the Issuer, subject to the right of the holders to withdraw their
request to participate in the registration pursuant to Section 2.3(a)(iii) after
being advised of such price, discount and other terms.


 


(c)           Participation in Underwritten Offerings. 
No Person may participate in an Underwritten Offering unless such Person
(i) agrees to sell such Person’s securities on the basis provided in any
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.


 


2.7.          No Inconsistent Agreements; Additional
Rights.  The Issuer will not enter into, and is not
currently a party to, any agreement which is, or could be, inconsistent with
the rights granted to the holders of Registrable Securities by this Agreement.


 


2.8.          Registration Expenses.  (a) 
Subject to Section 2.2(c), the Issuer shall pay all of the expenses set
forth in this Section 2.8(a) in connection with its performance or
compliance with this Agreement, including (i) all registration and filing
fees, and any other fees and expenses associated with filings required to be
made with the SEC or FINRA, (ii) all fees and expenses of compliance with
state securities or “Blue Sky” laws, (iii) all printing, duplicating, word
processing, messenger, telephone, facsimile and delivery expenses (including
expenses of printing certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses and Issuer Free Writing Prospectuses), (iv) all fees and
disbursements of counsel for the Issuer and of all independent certified public
accountants of the Issuer, (v) Securities Act liability insurance or
similar insurance if the Issuer so desires or the underwriter or underwriters,
if any, so require in accordance with then-customary underwriting practice, (vi) all
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or the quotation of the Registrable
Securities on any inter-dealer quotation system and (vii) all applicable
rating agency fees with respect to any applicable Registrable Securities.  In addition, in all cases the Issuer shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any audit and the fees and expenses of any Person, including
special experts, retained by the Issuer.  In addition, the Issuer shall pay all
reasonable fees and disbursements of one law firm or other counsel selected by
the holders of a majority of the Registrable Securities being registered.


 


17

















 


(b) The Issuer shall not be required to pay any other costs or
expenses in the course of the transactions contemplated hereby, including
underwriting discounts and commissions and transfer taxes attributable to the
sale of Registrable Securities and the fees and expenses of counsel to the
underwriters other than pursuant to Section 2.8(a).


 


2.9.          Indemnification.


 


(a)           Indemnification by the Issuer. 
The Issuer agrees to indemnify and hold harmless, to the full extent
permitted by law, each holder of Registrable Securities and their respective
affiliates, and each of their respective officers, directors, partners, members, employees, agents,
counsel, financial advisors and assignees (including affiliates of such
assignees) and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Persons from and against any and all
losses, claims, damages, liabilities (or actions or proceedings in respect
thereof, whether or not such indemnified party is a party thereto) and expenses
(including reasonable costs of investigation and reasonable legal expenses),
joint or several (each, a “Loss” and collectively “Losses”),
arising out of or based upon (i) any untrue or alleged untrue statement of
a material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act (including any
final, preliminary or summary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein) or any Issuer Free Writing Prospectus or amendment thereof or
supplement thereto or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus or Issuer Free Writing
Prospectus, in the light of the circumstances under which they were made) not
misleading, and the Issuer agrees to reimburse (on an as-incurred monthly
basis) each indemnified party for any reasonable legal or other reasonable
expenses incurred in connection with investigating, defending or participating
in any such Loss (whether or not such indemnified party is a party to any
action or proceeding out of which indemnified expenses arise); provided,
however, that the Issuer shall not be liable to any indemnified party in
any such case to the extent that any such Loss arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any such Registration Statement in reliance upon and in conformity with
written information furnished to the Issuer by such holder expressly for use in
the preparation thereof.  This indemnity
shall be in addition to any liability the Issuer may otherwise have.  Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such holder or
any indemnified party and shall survive the transfer of such securities by such
holder.  The Issuer will also indemnify,
if applicable and if requested, underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in any distribution
pursuant hereto, their officers and directors and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Indemnified Persons.


 


(b)           Indemnification by the Holders. 
Each selling holder of Registrable Securities agrees (severally and not
jointly) to indemnify and hold harmless, to the full extent permitted by law,
the Issuer, its officers, directors, employees, agents, counsel and financial
advisors and each Person who controls the Issuer (within the meaning of the
Securities Act and the Exchange Act) from and against any Losses resulting from
any untrue statement of a material fact or any omission of a material fact
required to be stated in the Registration Statement under 


 


18

















 


which such Registrable Securities were registered
under the Securities Act (including any final, preliminary or summary
Prospectus contained therein or any amendment thereof or supplement thereto or
any documents incorporated by reference therein) or any Issuer Free Writing
Prospectus or amendment thereof or supplement thereto, or necessary to make the
statements therein (in the case of a Prospectus or Issuer Free Writing
Prospectus, in the light of the circumstances under which they were made) not
misleading, to the extent, but only to the extent, that such untrue statement
or omission had been contained in any information furnished in writing by such
selling holder to the Issuer specifically for inclusion in such Registration
Statement, including, without limitation, information furnished to the Issuer
pursuant to Section 2.5(b) hereof. 
This indemnity shall be in addition to any liability such holder may
otherwise have.  In no event shall the
liability of any selling holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such holder under
the sale of the Registrable Securities giving rise to such indemnification
obligation.


 


(c)           Conduct of Indemnification Proceedings. 
Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided,
however,  that any delay or
failure to so notify the indemnifying party shall relieve the indemnifying
party of its obligations hereunder only to the extent, if at all, that it is
actually and materially prejudiced by reason of such delay or failure)
and (ii) permit such indemnifying party to assume the defense of such
claim with counsel chosen by it and reasonably satisfactory to the indemnified
party; provided, however, that any Person entitled to
indemnification hereunder shall have the right to select and employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (A) the
indemnifying party has agreed in writing to pay such fees or expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim within
a reasonable time after having received notice of such claim from the Person
entitled to indemnification hereunder and to employ counsel reasonably
satisfactory to such Person, (C) in
the reasonable judgment of any such Person, based upon advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims or (D) the
indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from, or in addition to, those available to the indemnifying
party (in which case, if the Person notifies the indemnifying party in
writing that such Person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such Person).  If such defense is not assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent, but such consent may not be unreasonably
withheld; provided, however, that an indemnifying party shall not
be required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
indemnifying party other than financial obligations for which such indemnified
party will be indemnified hereunder.  If
the indemnifying party assumes the defense, the indemnifying party shall have
the right to settle such action without the consent of the indemnified party; provided,
however, that the indemnifying party shall be required to obtain such
consent (which consent shall not be unreasonably withheld) if the settlement
includes any admission of wrongdoing on the part of the indemnified party or
any restriction on the indemnified party or its officers or directors.  No indemnifying party shall consent to entry
of any judgment or enter into any settlement which does not include as an 


 


19

















 


unconditional term thereof the giving by the claimant
or plaintiff to each indemnified party of an unconditional release from all
liability in respect to such claim or litigation.  The indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm (together with one firm
of local counsel) at any one time from all such indemnified party or parties
unless (x) the employment of more than one counsel has been authorized in
writing by the indemnifying party or parties, (y) a conflict or potential
conflict exists or may exist (based on advice of counsel to an indemnified
party) between such indemnified party and the other indemnified parties or (z) an indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it that are different from, or in addition to, those
available to the other indemnified parties, in each of which cases the indemnifying
party shall be obligated to pay the reasonable fees and expenses of such
additional counsel or counsels.


 


(d)           Contribution. 
If for any reason the indemnification provided for in paragraphs (a) and
(b) of this Section 2.9 is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by paragraphs (a) and (b) of
this Section 2.9, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such Loss in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other.  The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission.  Notwithstanding anything in
this Section 2.9(d) to the contrary, no indemnifying party (other
than the Issuer) shall be required pursuant to this Section 2.9(d) to
contribute any amount in excess of the amount by which the net proceeds
received by such indemnifying party from the sale of Registrable Securities in
the offering to which the Losses of the indemnified parties relate exceeds the
amount of any damages which such indemnifying party has otherwise been required
to pay by reason of such untrue statement or omission.  The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 2.9(d) were
determined by pro  rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. 
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.  If indemnification is available
under this Section 2.9, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Sections 2.9(a) and 2.9(b) hereof
without regard to the relative fault of said indemnifying parties or
indemnified party.


 


2.10.        Rules 144 and 144A. 
The Issuer covenants that it will take such action to the extent
required from time to time to enable any holder of Registrable Securities to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 or 144A or
Regulation S under the Securities Act, as such Rules may be amended from
time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC.  Upon the request of any holder of
Registrable Securities, the Issuer will deliver to


 


20

















 


such holder a written
statement as to whether it has complied with such requirements and, if not, the
specifics thereof.


 


SECTION 3.   MISCELLANEOUS


 


3.1.          Existing Registration Statements. 
Notwithstanding anything herein to the contrary and subject to
applicable law and regulation, the Issuer may satisfy any obligation hereunder
to file a Registration Statement or to have a Registration Statement become
effective by a specified date by designating, by notice to the Significant
Equityholders, a registration statement that previously has been filed with the
SEC or become effective, as the case may be, as the relevant Registration
Statement for purposes of satisfying such obligation, and all references to any
such obligation shall be construed accordingly. 
To the extent this Agreement refers to the filing or effectiveness of other
registration statements by or at a specified time and the Issuer has, in lieu
of then filing such registration statements or having such registration
statements become effective, designated a previously filed or effective
registration statement as the relevant registration statement for such
purposes, such references shall be construed to refer to such designated
registration statement.


 


3.2.          Term.  This
Agreement shall terminate upon the earliest of (i) the later of (A) the
two-year anniversary of the date of this Agreement and (B) the two-year
anniversary of the initial Shelf Registration, if any, becoming effective and (ii) the
date as of which (A) all of the Registrable Securities have been sold
pursuant to a Registration Statement (but in no event prior to the applicable
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder), (B) the holders are permitted to sell their Registrable
Securities under Rule 144 under the Securities Act without limitation on
volume or the manner of sale (or any similar provision then in force permitting
the sale of restricted securities without limitation on the amount of
securities sold or the manner of sale) or (C) all Registrable Securities
having ceased to be Registrable Securities pursuant to the definition
thereof.  The provisions of Section 2.9
and Section 2.10 shall survive any termination of this Agreement.


 


3.3.          Injunctive
Relief.  It is hereby agreed and
acknowledged that it will be impossible to measure in money the damages that
would be suffered if the parties fail to comply with any of the obligations
herein imposed on them and that in the event of any such failure, an aggrieved
Person will be irreparably damaged and will not have an adequate remedy at law.  Any such Person shall, therefore, be entitled
(in addition to any other remedy to which it may be entitled in law or in
equity) to injunctive relief, including, without limitation, specific
performance, to enforce such obligations, and if any action should be brought
in equity to enforce any of the provisions of this Agreement, none of the
parties hereto shall raise the defense that there is an adequate remedy at law.


 


3.4.          Attorneys’ Fees.  In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is
validly asserted as a defense, the successful party shall, to the extent
permitted by applicable law, be entitled to recover reasonable attorneys’ fees
in addition to any other available remedy.


 


3.5.          Notices.  (a) All
notices, other communications or documents provided for or permitted to be
given hereunder, shall be made in writing and shall be given either personally


 


21

















 


by hand delivery, by facsimile transmission, by
electronic mail, by mailing the same in a sealed envelope, registered or
certified first-class mail, postage prepaid, return receipt requested, or by
air courier guaranteeing overnight delivery:


 


If to the Significant Equityholders, to:
 
D. E. Shaw Laminar Portfolios, L.L.C.
c/o D. E. Shaw & Co., L.P.
120 West 45th Street, 39th Floor
New York, New York 10036
Attention: Maureen Knoblauch
Telephone No.:  (212) 478-0628
Facsimile No.:  (212) 845-1628
E-mail: Maureen.Knoblauch@deshaw.com
 
Sigma Capital Associates, LLC

540 Madison Avenue

New York, New York 10022

Attention:  Peter Nussbaum
Telephone No.:  (203) 614-2094
Facsimile No.:  (203) 614-2393
E-mail:  petern@saccapital.com
 
With a copy to:
John Reilly

Telephone No.:  (212) 756-1568

Facsimile No.:  (203) 890-6678

E-mail:  johnre@sigmacapny.com
 
CGDO, LLC (as agent on behalf of Chilton Global Distressed Opportunities 

Master Fund, L.P.) and Q Funding III, L.P.
  c/o Chilton Capital Management, LLC

1266 East Main Street, 7th Floor
Stamford, Connecticut 06902
Attention:  Dwayne Weston
Telephone No.:   (203) 352-4107
Facsimile No.:  (203) 352-7171
E-mail: dweston@chiltoninc.com
 
22















 
With a copy to:
 
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attention:  Richard J. Cooper, Esq.
Telephone No.:  (212) 225-2000
Facsimile No.:  (212) 225-3999
E-mail:  rcooper@cgsh.com
 
If to the Issuer, to:
 
Foamex International Inc.
1000 Columbia Avenue
Linwood, PA 19061
Attention:  Andrew R. Prusky, Esq.
Senior Vice President, Legal
Telephone No.:  (610) 859-3000
Facsimile No.:   (610) 859-3024
E-mail:  aprusky@foamex.com
 
With a copy to:
 
Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas
New York, NY  10019
Attention:  Judith R. Thoyer, Esq.
Telephone No.:  (212) 373-3002
Facsimile No.:  (212) 492-0002
E-mail:  jthoyer@paulweiss.com
 


(b)           Each holder, by written notice given to
the Issuer in accordance with this Section 3.5 may change the address to
which notices, other communications or documents are to be sent to such
holder.  All notices, other
communications or documents shall be deemed to have been duly given:  (i) at the time delivered by hand, if
personally delivered; (ii) when receipt is acknowledged in writing by
addressee, if by facsimile transmission; (iii) five business days after
having been deposited in the mail, postage prepaid, if mailed by first class
mail; (iv) when receipt is acknowledged, if transmitted by facsimile
transmission or by electronic mail; and (v) on the first business day with
respect to which a reputable air courier guarantees delivery; provided,
however, that notices of a change of address shall be effective only upon
receipt.


 


3.6.          Successors, Assigns and Transferees.  (a) 
The registration rights of any holder under this Agreement with respect to any
Registrable Securities may be transferred and assigned, provided, however,
that no such transfer or assignment shall be binding upon or obligate the
Issuer to any such assignee unless and until the Issuer shall have received
notice of such assignment as herein provided and a written agreement of the
assignee to be bound by the 


 


23

















 


provisions of this Agreement.  Any transfer or assignment made other than as
provided in the first sentence of this Section 3.6 shall be null and void.


 


(b)           This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, and their respective successors and
permitted assigns.


 


3.7.          Governing Law; Service of Process;
Consent to Jurisdiction.  (a)  This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed within the state.


 


(b)           To the fullest extent permitted by
applicable law, each party hereto (i) agrees that any claim, action or
proceeding by such party seeking any relief whatsoever arising out of, or in
connection with, this Agreement or the transactions contemplated hereby shall
be brought only in the United States District Court for the Southern District
of New York and in any New York State court located in the Borough of Manhattan
and not in any other State or Federal court in the United States of America or
any court in any other country, (ii) agrees to submit to the exclusive jurisdiction
of such courts located in the State of New York for purposes of all legal
proceedings arising out of, or in connection with, this Agreement or the
transactions contemplated hereby and (iii) irrevocably waives any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.


 


(c)           The parties hereto hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement.


 


3.8.          Headings.  The section
and paragraph headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.


 


3.9.          Severability. 
Whenever possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained therein.


 


3.10.        Amendment; Waiver.


 


(a)           This Agreement may not be amended or
modified and waivers and consents to departures from the provisions hereof may
not be given, except by an instrument or instruments in writing making specific
reference to this Agreement and signed by the Issuer and the holders of a
majority of Registrable Securities of each class then outstanding.  Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment,
modification, waiver or consent authorized by this Section 3.10(a),
whether or not such Registrable Securities shall have been marked accordingly.


 


24

















 


(b)           The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as
a further or continuing waiver of such breach or as a waiver of any other or
subsequent breach. Except as otherwise expressly provided herein, no failure on
the part of any party to exercise, and no delay in exercising, any right, power
or remedy hereunder, or otherwise available in respect hereof at law or in
equity, shall operate as a waiver thereof, nor shall any single or partial
exercise of such right, power or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.


 


3.11.        Counterparts. 
This Agreement may be executed in any number of separate 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 together shall
constitute one and the same agreement.


 


25

















 


IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.


 


	
  D. E. SHAW LAMINAR
  PORTFOLIOS, L.L.C.   

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGMA CAPITAL ASSOCIATES,
  LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Sigma Capital Management,
  LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: 

  	
   

  
	
   

  	
   

  	
   

  
	
  CGDO, LLC as agent on
  behalf of Chilton Global 

  Distressed Opportunities Master Fund, LP

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Chilton Investment
  Company, LLC

  Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title: 

  	
   

  
	
   

  	
   

  	
   

  
	
  Q FUNDING III, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Prufrock Onshore, L.P.,
  its general partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  J Alfred Onshore, LLC, its
  general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  FOAMEX INTERNATIONAL INC.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: