Exhibit
4.2


 


EXECUTION VERSION


 


This
Registration Rights Agreement (this “Agreement”) is made and entered
into as of October 18, 2010, by and among DJO Finance LLC, a Delaware
limited liability company (“DJO LLC”), and DJO Finance Corporation, a
Delaware corporation wholly owned by DJO LLC (“DJO Corp.”, and together
with DJO LLC, the “Issuers”), the Guarantors listed on Schedule A hereto
(the “Guarantors”), and Credit Suisse Securities (USA) LLC (“CS
Securities”), as representative of the initial purchasers listed in Annex A
of the Purchase Agreement (as defined below) (collectively, the “Initial
Purchasers”), who have agreed to purchase the Issuers’ 93⁄4% Senior
Subordinated Notes due 2017 (the “Initial Notes”) and the related
guarantees (the “Initial Guarantees”) pursuant to the Purchase
Agreement.


 


This
Agreement is made pursuant to the Purchase Agreement, dated as of October 5,
2010 (the “Purchase Agreement”), by and among the Issuers, the
Guarantors and CS Securities, as representative of the Initial Purchasers,
(i) for the benefit of the Initial Purchasers and (ii) for the
benefit of the holders from time to time of the Notes (as hereinafter defined)
(including the Initial Purchasers).  In
order to induce the Initial Purchasers to purchase the Initial Notes, the
Issuers and the Guarantors have agreed to provide the registration rights set
forth in this Agreement.  The execution
and delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 5(g) of the Purchase Agreement.


 


The
parties hereby agree as follows:


 


SECTION 1.           Definitions. As
used in this Agreement, the following capitalized terms shall have the
following meanings:


 


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


 


Business Day:  Any day other
than a Saturday, Sunday or U.S. federal holiday or a day on which banking
institutions in the City of New York are authorized or obligated to be
closed.


 


Closing Date:  The date of
this Agreement.


 


Commission:  The Securities
and Exchange Commission.


 


Consummate:  An Exchange
Offer shall be deemed “Consummated” for purposes of this Agreement upon the
delivery by the Issuers to the Registrar under the Indenture of Exchange Notes
in the same aggregate principal amount as the aggregate principal amount of
Initial Notes that were tendered by Holders thereof pursuant to the Exchange
Offer.


 


Exchange Act:  The Securities
Exchange Act of 1934, as amended.


 


Exchange Guarantees:  The guarantees to be issued by the
Guarantors, relating to the Exchange Notes.


 


Exchange Notes:  The 93/4% Senior Subordinated Notes due 2017, of the same
series under the Indenture as the Initial Notes, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.


 

















 


Exchange Offer:  The
registration by the Issuers and the Guarantors under the Securities Act of the
Exchange Notes pursuant to a Registration Statement pursuant to which the
Issuers and the Guarantors offer the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Exchange Notes and the Exchange
Guarantees in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities tendered in such exchange offer by
such Holders.


 


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


 


FINRA:  The Financial
Industry Regulatory Authority.


 


Holders:  As defined in
Section 2(b) hereof.


 


Indemnified Holder:  As defined in
Section 8(a) hereof.


 


Indenture:  The Indenture,
dated as of October 18, 2010, among the Issuers, the Guarantors and The
Bank of New York Mellon, as trustee (the “Trustee”), pursuant to
which the Notes are to be issued, as such Indenture may be amended or
supplemented from time to time in accordance with the terms thereof.


 


Initial Guarantees:  As defined in the preamble hereto.


 


Initial Notes:  As defined in
the preamble hereto.


 


Initial Placement Date:  The date of the
issuance and sale by the Issuers of the Initial Notes to the Initial Purchasers
pursuant to the Purchase Agreement.


 


Initial Purchasers:  As defined in
the preamble hereto.


 


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


 


Notes:  The Initial
Notes and the Exchange Notes.


 


Person:  An individual,
partnership, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.


 


Private Exchange:  As
defined in Section 3(c) hereof.


 


Private Exchange Notes:  As defined in Section 3(c) hereof.


 


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


 


Registration Statement:  Any
registration statement of the Issuers and the Guarantors relating to
(a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant
to the Shelf Registration 


 


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Statement,
which is filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.


 


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


 


Shelf Registration Statement:  As defined in
Section 4 hereof.


 


Transfer Restricted Securities:  Each Initial
Note and the related Initial Guarantees, until the earliest to occur of
(a) the date on which such Initial Note and the related Initial Guarantees
are exchanged in the Exchange Offer and are entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (b) the date on which such Initial
Note and the related Initial Guarantees have been effectively registered under
the Securities Act and disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Initial Note and the related Initial
Guarantees are distributed to the public pursuant to Rule 144 under the
Securities Act or by a Broker-Dealer pursuant to the “Plan of Distribution”
contemplated by the Exchange Offer Registration Statement (including delivery
of the Prospectus contained therein) and (d) two years following the date
of the initial issuance of the Initial Notes and the Initial Guarantees.


 


Trust Indenture Act:  The Trust
Indenture Act of 1939 (15 U.S.C. Section 77aaa 77bbbb) as in effect on the
date of the Indenture.


 


Underwritten Registration or Underwritten Offering:  A registration in which
securities of the Issuers are sold to an underwriter for reoffering to the
public.


 


SECTION 2.           Securities Subject to This Agreement.


 


(a)           Transfer Restricted Securities.  The securities entitled to the benefits of
this Agreement are the Transfer Restricted Securities.


 


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


 


SECTION 3.           Registered Exchange Offer.


 


(a)           Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with), the Issuers and
the Guarantors shall (i) prepare and file with the Commission an Exchange
Offer Registration Statement under the Securities Act, (ii) use their
reasonable efforts to cause such Exchange Offer Registration Statement to
become effective under the Securities Act, (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities 


 


3

















 


Act
and (C) all necessary filings in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer,
and (iv) upon the effectiveness of such Registration Statement, commence
the Exchange Offer.  The Exchange Offer
shall be on the appropriate form permitting registration of the Exchange Notes
to be offered in exchange for the Transfer Restricted Securities and to permit
resales of Notes held by Broker-Dealers as contemplated by Section 3(c) below.


 


(b)           The Issuers and the Guarantors shall use their
reasonable best efforts to cause the Exchange Offer Registration Statement to
be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however,
that in no event shall such period be less than 20 Business Days after the
date notice of the Exchange Offer is mailed to the Holders.  The Issuers and the Guarantors shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws.  The Issuers and the Guarantors
shall use commercially reasonable efforts to cause the Exchange Offer to be
Consummated on or before the 360th day following the Initial Placement Date (or
October 13, 2011).


 


(c)           If, prior to consummation of the Exchange
Offer, any Initial Purchaser holds any Initial Notes acquired by it that have
the status of an unsold allotment in the initial distribution, the Issuers,
upon the request of such Initial Purchaser, shall simultaneously with the
delivery of the Exchange Notes issue and deliver to such Initial Purchaser, in
exchange (the “Private Exchange”) for such Initial Notes held by any
such Holder, a like principal amount of notes (the “Private Exchange Notes”)
of the Issuers, guaranteed by the Guarantors, that are identical in all
material respects to the Exchange Notes except for the placement of a
restrictive legend on such Private Exchange Notes.  The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and bear the same CUSIP
number as the Exchange Notes if permitted by the CUSIP Service Bureau.


 


(d)           The Issuers acknowledge that, pursuant to
current interpretations by the Commission’s staff of Section 5 of the
Securities Act, in the absence of an applicable exemption therefrom,
(i) each Broker-Dealer electing to exchange Initial Notes, acquired for
its own account as a result of market-making activities or other trading
activities, for Exchange Notes (an “Exchanging Dealer”), is required to
deliver a prospectus containing the information set forth in
(a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange
Offer Procedures” section and the “Purpose of the Exchange Offer” section, and
(c) Annex C hereto in the “Plan of Distribution” section of such
prospectus in connection with a sale of any such Exchange Notes received by
such Exchanging Dealer pursuant to the Registered Exchange Offer and
(ii) if any Initial Purchaser elects to sell Exchange Notes acquired in
exchange for Initial Notes constituting any portion of an unsold allotment,
such Initial Purchaser will be required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.


 


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The
Issuers and the Guarantors shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the
extent necessary to ensure that it is available for resales of Notes acquired
by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period
ending on the earlier of (i) 90 days from the date on which the Exchange
Offer Registration Statement is declared effective, (ii) the date on which
a Broker-Dealer is no longer required to deliver a prospectus in connection
with market-making or other trading activities and (iii) the date on which
all the Notes covered by such Exchange Offer Registration Statement have been
sold pursuant to such Exchange Offer Registration Statement.


 


The
Issuers shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
90-day (or shorter as provided in the foregoing sentence) period in order to
facilitate such resales.


 


SECTION 4.           Shelf Registration.


 


(a)           Shelf Registration.  If (1) because of any change in law or in
currently prevailing interpretations of the staff of the Commission, the
Issuers are not permitted to effect the Exchange Offer, (2) the Exchange
Offer is not consummated within 360 days following the Initial Placement
Date, (3) any holder of Private Exchange Notes so requests in writing to
the Issuers at any time within 30 days after the consummation of the
Exchange Offer, or (4) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Securities on the date of
the exchange that may be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of the Issuers within the meaning of the Securities Act) and so
notifies the Issuers within 30 days after such Holder first becomes aware
of such restrictions, in the case of each of clauses (1) to and
including clause (4) of this sentence, then, upon such Holder’s
request, the Issuers and the Guarantors shall:


 


(x)            use their
reasonable best efforts to file a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the “Shelf
Registration Statement”) as soon as practicable after the filing obligation
arises, which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and


 


(y)           use commercially reasonable
efforts to cause such Shelf Registration Statement to be declared effective
promptly by the Commission.


 


The
Issuers and the Guarantors shall use their reasonable best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended
as required by the provisions of Sections 6(b) and (c) hereof to
the extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this 


 


5

















 


Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission
as announced from time to time, until the earlier of (i) two years after
the Initial Placement Date of the Initial Notes or (ii) such time as all
of the Initial Notes have been sold thereunder (the “Effectiveness Period”).  Notwithstanding anything to the contrary in
this Agreement, at any time, the Issuers may delay the filing of any Shelf
Registration Statement or delay or suspend the effectiveness thereof, for a
reasonable period of time, but not in excess of 60 consecutive days or
more than three times during any calendar year (each, a “Shelf Suspension
Period”), if the Board of Directors of DJO LLC determines reasonably and in
good faith that the filing of any such initial Shelf Registration Statement or
the continuing effectiveness thereof would require the disclosure of non-public
material information that, in the reasonable judgment of the Board of Directors
of DJO LLC, would be detrimental to the Issuers if so disclosed or would
otherwise materially adversely affect a financing, acquisition, disposition,
merger or other material transaction or such action is required by applicable
law.


 


(b)           Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement.  No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuers in writing, within 20 Business Days after receipt of a request
therefor, such information as the Issuers may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein.  Each Holder
as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such
Holder not materially misleading.


 


SECTION 5.           Additional Interest.


 


If
(a) the Exchange Offer has not been Consummated or a Shelf Registration
Statement has not been declared effective by the Commission on or prior to the
360th day after the Initial Placement Date, or (b) if applicable, a Shelf
Registration Statement has been declared effective but shall thereafter cease
to be effective during the Effectiveness Period (other than because of the sale
of all of the Transfer Restricted Securities registered thereunder), then
additional interest (“Additional Interest”) shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum (which rate will be
increased by an additional 0.25% per annum for each subsequent 90-day period
that such Additional Interest continues to accrue; provided
that the rate which such Additional Interest accrues may in no event exceed
1.00% per annum) (such Additional Interest to be calculated by the Issuers)
commencing on (x) the 361st day after the Initial Placement Date, in the
case of clause (a) above, or (y) the day such Shelf Registration
ceases to be effective in the case of clause (b) above; provided, however, that
upon the exchange of the Exchange Notes for all Transfer Restricted Securities
tendered, or upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective, Additional Interest on the
Notes in respect of which such events relate as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue.  Notwithstanding any other provisions of this
Section 5, the Issuers shall not be obligated to pay Additional Interest
provided in this Section 5 during a Shelf Suspension Period permitted by
Section 4(a) hereof.


 


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SECTION 6.           Registration Procedures.


 


(a)           Exchange Offer Registration Statement.  In connection with the Exchange Offer, each of the
Issuers and each of the Guarantors shall comply with all of the provisions of
Section 6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:


 


(i)            If in the reasonable opinion of counsel to the Issuers there is a
question as to whether the Exchange Offer is permitted by applicable law and it
is advisable to do so, the Issuers and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the Commission allowing the
Issuers and the Guarantors to Consummate an Exchange Offer for such Initial
Notes.  The Issuers and the Guarantors
each hereby agree to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take action to effect a change of
Commission policy.  The Issuers and the
Guarantors each hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Issuers setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer should
be permitted and (C) diligently pursue a resolution by the Commission
staff of such submission.


 


(ii)           As a condition to its participation in the Exchange Offer pursuant to the
terms of this Agreement, each Holder of Transfer Restricted Securities shall
furnish, upon the request of the Issuers, prior to the Consummation thereof, a
written representation to the Issuers (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Issuers, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange
Notes to be issued in the Exchange Offer and (C) it is acquiring the
Exchange Notes in its ordinary course of business.  In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Issuers’ preparations
for the Exchange Offer.  Each Holder,
including any Holder that is a Broker-Dealer, shall acknowledge and agree that
any such Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley & Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and similar no-action
letters (which may include any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction
should be covered by an effective registration statement containing the selling
security 


 


7

















 


holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Exchange Notes obtained by such Holder in exchange for Initial
Notes acquired by such Holder directly from the Issuers.


 


(b)           Shelf Registration Statement.  In connection with the Shelf Registration
Statement, each of the Issuers and each of the Guarantors shall comply with all
the provisions of Section 6(c) below.


 


(c)           General Provisions.  In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Issuers and the Guarantors shall:


 


(i)            use their reasonable best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
including, if required by the Securities Act or any regulation thereunder,
financial statements of the Guarantors; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading or
(B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Issuers and the
Guarantors shall file promptly an appropriate amendment to such Registration
Statement or supplement to the Prospectus or document incorporated by reference,
in the case of clause (A), correcting any such misstatement or omission,
and, in the case of an amendment, use their reasonable best efforts to cause
such amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter;


 


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


 


(iii)          advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by 


 


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the Commission for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and (D) of the existence of
any fact or the happening of any event that makes any statement of a material
fact made in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein untrue or
that requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading.  If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Issuers and the Guarantors shall use their reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;


 


(iv)          furnish without charge to counsel for the Initial Purchasers, each
selling Holder named in any Registration Statement, and each of the
underwriter(s), if any, at least one copy before filing with the Commission of
any Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (including, if
requested in writing by any such Person, all documents incorporated by
reference after the initial filing of such Registration Statement, if not
available on the Commission’s EDGAR database), which Registration Statement or
any Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus will be subject to the review of CS
Securities and such Holders and underwriter(s) in connection with such
sale, if any, for a reasonable period, and the Issuers will not file any such
Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus to which CS Securities or the
underwriter(s), if any, shall reasonably object in writing after the receipt
thereof (such objection to be deemed timely made upon confirmation of telecopy
transmission within such period).  The
objection of CS Securities or an underwriter, if any, shall be deemed to be
reasonable if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein not misleading;


 


(v)           make reasonably available for inspection by the Initial Purchasers, any
managing underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by the Initial
Purchasers or any of the underwriter(s), all material financial and other
records, pertinent corporate documents and properties of the Issuers and the
Guarantors and cause the Issuers’ and the Guarantors’ officers and employees to
supply all 


 


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information reasonably
requested by any such Holder, underwriter, attorney or accountant in connection
with such Registration Statement subsequent to the filing thereof and prior to
its effectiveness, in each case, as shall be reasonably necessary to enable
such persons to conduct an investigation within the meaning of Section 11
of the Securities Act; provided, however, (A) that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial Purchasers
by Cravath, Swaine & Moore LLP and on behalf of any other parties by
one counsel designated by and on behalf of such other parties as described in Section 7
hereof, and (B) that any information that is reasonably and in good faith
designated by the Issuers in writing as confidential at the time of delivery of
such information shall be kept confidential by the Initial Purchasers, the
Holders, or any such underwriter, attorney, accountant or other agent, unless (1) disclosure
of such information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (2) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of such
Registration Statement or the use of any Prospectus), (3) such information
becomes generally available to the public other than as a result of a
disclosure or failure to safeguard such information by such Person or (4) such
information becomes available to the Initial Purchasers, Holder, underwriter,
attorney, accountant or other agent from a source other than the Issuers and
such source is not known, after due inquiry, by the relevant Initial Purchaser,
Holder, underwriter, attorney, accountant or other agent to be bound by a
confidentiality agreement or is not otherwise under a duty of trust to the
Issuers;


 


(vi)          if requested in writing by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the “Plan
of Distribution” of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Issuers are notified
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;


 


(vii)         use
commercially reasonable efforts to confirm that the ratings assigned to the
Initial Notes will apply to the Transfer Restricted Securities covered by the
Registration Statement, if so requested by the Holders of a majority in
aggregate principal amount of Notes covered thereby or the underwriter(s), if
any;


 


(viii)        furnish
to each selling Holder and each of the underwriter(s), if any, without charge,
at least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including financial


 


10






 












 


statements and schedules
and, if requested in writing, all documents incorporated by reference therein
and all exhibits (including exhibits incorporated therein by reference);


 


(ix)           deliver to each selling Holder and
each of the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Issuers and the
Guarantors hereby consent to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;


 


(x)            enter into such agreements
(including an underwriting agreement), make such representations and
warranties, and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Shelf Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by the Initial Purchasers or
by any Holder of Transfer Restricted Securities or underwriter in connection
with any sale or resale pursuant to any Shelf Registration Statement
contemplated by this Agreement; and, whether or not an underwriting agreement
is entered into and whether or not such registration is an Underwritten
Registration, the Issuers and the Guarantors shall:


 


(A)          furnish to the Initial Purchasers,
each selling Holder and each underwriter, if any, in such substance and scope
as they may request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the effectiveness of the Shelf
Registration Statement:


 


(1)           a
certificate, dated the date of the effectiveness of the Shelf Registration
Statement signed by (y) the President or any Vice President and (z) a
principal financial or accounting officer of each of the Issuers, confirming,
as of the date thereof, the matters set forth in paragraphs (i), (ii) and (iii) of
Section 5(f) of the Purchase Agreement and such other matters as such
parties may reasonably request;


 


(2)           an
opinion, dated the date of the effectiveness of the Shelf Registration
Statement of counsel for the Issuers and the Guarantors, in form, scope and
substance reasonably satisfactory to the managing underwriter, addressed to the
underwriters covering the matters customarily covered in opinions, reasonably
requested in underwritten offerings, and in any event including a statement to
the effect that such counsel has participated in conferences with officers and
other representatives of the Issuers and the Guarantors, representatives of the
independent public accountants for the 


 


11

















 


Issuers
and the Guarantors, the Initial Purchasers’ representatives and the Initial
Purchasers’ counsel in connection with the preparation of such Registration
Statement and the related Prospectus and have considered the matters required
to be stated therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness or fairness
of such statements; and that such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large extent upon facts provided to
such counsel by officers and other representatives of the Issuers and the
Guarantors and without independent check or verification), no facts came to
such counsel’s attention that caused such counsel to believe that the Shelf
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date contained an
untrue statement of a material fact or omitted 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.  Without limiting the foregoing, such counsel
may state further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the related
Prospectus; and


 


(3)           customary
comfort letters, dated as of the date of the effectiveness of the Shelf
Registration Statement, in form, scope and substance reasonably satisfactory to
the managing underwriter from (a) the Issuers’ and the Guarantors’
independent accountants and (b) the independent accountants of any other
Person for which financial statements are included in or incorporated by
reference in to such Shelf Registration Statement, in the customary form and
covering matters of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten offerings;


 


(B)           set forth in full or incorporate by
reference in the underwriting agreement, if any, the indemnification provisions
and procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and


 


(C)           deliver such other documents and
certificates as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary conditions
contained in the 


 


12

















 


underwriting agreement or
other agreement entered into by the Issuers or the Guarantors pursuant to this
clause (x), if any.


 


If
at any time the representations and warranties of the Issuers and the
Guarantors contemplated in clause (A)(1) above cease to be true and
correct, the Issuers or the Guarantors shall so advise the Initial Purchasers
and the underwriter(s), if any, and each selling Holder promptly, and if
requested by such Persons, shall confirm such advice in writing;


 


(xi)           prior to any public offering of
Transfer Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions
of the Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that neither the Issuers nor the Guarantors shall
be required to register or qualify as a foreign corporation where they are not
then so qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where they are not
then so subject;


 


(xii)          shall issue, upon the request of any
Holder of Initial Notes covered by and sold pursuant to the Shelf Registration
Statement, Exchange Notes, having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes surrendered to the Issuers by such
Holder in exchange therefor; such Exchange Notes to be registered in the name
of the purchaser of such Notes; in return, the Initial Notes held by such
Holder shall be surrendered to the Issuers for cancellation;


 


(xiii)         cooperate with the selling Holders and
the underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);


 


(xiv)        use commercially reasonable efforts to
cause the Transfer Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (viii) above;


 


(xv)         if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the 


 


13

















 


Registration Statement or
related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading;


 


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


 


(xvii)       cooperate and assist in any filings
required to be made with the FINRA and in the performance of any due diligence
investigation by any underwriter (including any “qualified independent
underwriter”) that is required to be retained in accordance with the rules and
regulations of the FINRA, and use their reasonable best efforts to cause such
Registration Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the Holders selling
Transfer Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;


 


(xviii)      otherwise use their reasonable best
efforts to comply with all applicable rules and regulations of the
Commission, and make generally available to the Issuers’ security holders, as
soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm or best efforts Underwritten Offering or (B) if
not sold to underwriters in such an offering, beginning with the first month of
the Issuers’ first fiscal quarter commencing after the effective date of the
Registration Statement;


 


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


 


(xx)          provide promptly to each Holder upon
request each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.


 


Each
Holder shall agree by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Issuers of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer 


 


14

















 


Restricted
Securities pursuant to the applicable Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xv) hereof, or until it is advised in writing (the “Advice”)
by the Issuers that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus.  If so
directed by the Issuers, each Holder will deliver to the Issuers (at the
Issuers’ expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice.  In the event the Issuers shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to
and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice; however, no such extension shall be taken into account in
determining whether Additional Interest is due pursuant to Section 5
hereof or the amount of such Additional Interest.


 


SECTION 7.                                Registration Expenses.


 


(a)           All
expenses incident to the Issuers’ or the Guarantors’ performance of or
compliance with this Agreement will be borne by the Issuers and the Guarantors,
regardless of whether a Registration Statement becomes effective, including
without limitation:  (i) all
registration and filing fees and expenses (including filings made by the
Initial Purchasers or Holders with the FINRA (and, if applicable, the fees and
expenses of any “qualified independent underwriter” and its counsel that may be
required by the rules and regulations of the FINRA)); (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Issuers, the Guarantors and, subject
to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all fees and disbursements of independent certified public accountants
of the Issuers and the Guarantors (including the expenses of any special audit
and comfort letters required by or incident to such performance); and
(vi) all fees and expenses of the Trustee and the exchange agent and their
counsel.


 


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


 


(b)           In
connection with any Shelf Registration Statement required by this Agreement,
the Issuers and the Guarantors will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities being registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Cravath, Swaine &
Moore LLP or such other counsel as may be chosen by the Holders of a majority
in principal amount of the 


 


15

















 


Transfer
Restricted Securities for whose benefit such Shelf Registration Statement is
being prepared.


 


SECTION 8.                                Indemnification.


 


(a)           The
Issuers agrees and the Guarantors, jointly and severally, agree to indemnify
and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the persons referred to in this clause (ii) being
hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an “Indemnified Holder”),
to the fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including, without
limitation and as incurred, reimbursement of all reasonable costs of investigating,
preparing, pursuing, settling, compromising, paying or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder), joint or several, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Issuers
and the Guarantors by such Holder expressly for use therein.  This indemnity agreement shall be in addition
to any liability which the Issuers or any Guarantor may otherwise have.


 


In
case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Issuers or any Guarantor, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Issuers and
the Guarantors in writing (provided that
the failure to give such notice shall not relieve the Issuers or the Guarantors
of their respective obligations pursuant to this Agreement except to the extent
they are materially prejudiced as a proximate result of such failure).  In case any such action is brought against
any Indemnified Holder and such Indemnified Holder seeks or intends to seek
indemnity from the Issuers or the Guarantors, the Issuers or the Guarantors
will be entitled to participate in and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the Indemnified Holder promptly after receiving the
aforesaid notice from such Indemnified Holder, to assume the defense thereof
with counsel reasonably satisfactory to such Indemnified Holder; provided,
however, if the defendants in any such action include both the Indemnified
Holder and the Issuers or any Guarantor and the Indemnified Holder shall have
reasonably concluded (based on the advice of counsel) that a conflict may arise
between the positions of the Issuers or the 


 


16

















 


Guarantors
and the Indemnified Holder in conducting the defense of any such action or that
there may be legal defenses available to it and/or other Indemnified Holders
which are different from or additional to those available to the Issuers or the
Guarantors, the Indemnified Holder or Holders shall have the right to select
separate counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such Indemnified Holder or
Holders.  Upon receipt of notice from the
Issuers or Guarantors to such Indemnified Holder of the Issuers’ or the Guarantors’
election so to assume the defense of such action and approval by the
Indemnified Holder of counsel, the Issuers or the Guarantors will not be liable
to such Indemnified Holder under this Section 8 for any legal or other
expenses subsequently incurred by such Indemnified Holder in connection with
the defense thereof unless (i) the Indemnified Holder shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the Issuers or the Guarantors shall not be
liable for the expenses of more than one separate counsel (together with local
counsel), approved by the Issuers or the Guarantors, representing the
Indemnified Holders who are parties to such action) or (ii) the Issuers or
the Guarantors shall not have employed counsel satisfactory to the Indemnified
Holder to represent the Indemnified Holder within a reasonable time after
notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the Issuers or the
Guarantors.  It is understood and agreed
that the Issuers or the Guarantors shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (together with any local
counsel) for all Indemnified Holders. 
Each Indemnified Holder, as a condition to indemnification hereunder,
shall use all reasonable efforts to cooperate with the Issuers or the
Guarantors in the defense of any such action or claim.  The Issuers shall not be liable for any
settlement of any such action or proceeding effected without the Issuers’ prior
written consent, but if settled with such consent or there be a final judgment
for the plaintiff, the Issuers and the Guarantors agree to indemnify and hold
harmless any Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.  The Issuers and the Guarantors shall not,
without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Holder from all liability arising out of such
action, claim, litigation or proceeding.


 


(b)           Each
Holder of Transfer Restricted Securities shall, severally and not jointly,
indemnify and hold harmless the Issuers, the Guarantors and their respective
officers, directors, partners, employees, representatives and agents, and any
person controlling (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) the Issuers and the Guarantors, and the
respective officers, directors, partners, employees, representatives and agents
of each such person, to the same extent as the foregoing indemnity from the
Issuers and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement.  In case any action or
proceeding shall be brought against the Issuers, the Guarantors, any such
controlling person, or their respective officers, directors, partners, 


 


17

















 


employees,
representatives and agents in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Issuers and the Guarantors and the Issuers, the
Guarantors, such controlling person and their respective officers, directors,
partners, employees, representatives and agents shall have the rights and
duties given to each Indemnified Holder by Section 8(a).  In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Notes giving rise to such
indemnification obligation.


 


(c)           If
the indemnification provided for in this Section 8 is unavailable to an
indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections, including by
reason of failure to notify the Issuers and the Guarantors of indemnification
obligations thereunder to the extent that they are materially prejudiced as a
proximate result of such failure) in respect of any losses, claims, damages,
liabilities, judgments, actions or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors, on the one hand, and the Holders, on the other
hand, from the Initial Placement (which in the case of the Issuers shall be
deemed to be equal to the total gross proceeds from the Initial Placement as
set forth on the cover page of the Offering Circular) or if such allocation
is not permitted by applicable law, the relative fault of the Issuers and the
Guarantors, on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations.  The relative
fault of the Issuers, on the one hand, and of the Indemnified Holder, on the
other, 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
Issuers or by the Indemnified Holder and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.  The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.


 


The
Issuers and the Guarantors agree and each Holder of Transfer Restricted Securities
shall agree that it would not be just and equitable if contribution pursuant to
this Section 8(c) were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. 
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.  Notwithstanding the provisions
of this Section 8, none of the Holders (and its related Indemnified
Holders) shall 


 


18

















 


be
required to contribute, in the aggregate, any amount in excess of the amount by
which the net proceeds received by such Holder from the sale of the Notes
pursuant to a Registration Statement exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. 
The Holders’ obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Initial Notes held
by each of the Holders hereunder and not joint.


 


SECTION 9.                                Rule 144A.


 


Each
Issuer and each Guarantors hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.


 


SECTION 10.                          Participation in Underwritten Registrations.


 


No
Holder may participate in any Underwritten Registration hereunder unless such
Holder (a) agrees to sell such Holder’s Transfer Restricted 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 reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.


 


SECTION 11.                          Selection of Underwriters.


 


The
Holders of Transfer Restricted Securities covered by the Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Securities in
an Underwritten Offering.  In any such
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering; provided that
such investment bankers and managers must be reasonably satisfactory to the
Issuers.


 


SECTION 12.                          Miscellaneous.


 


(a)           Remedies.  Each
Issuer and each Guarantor each hereby agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive, to the 


 


19

















 


extent
permitted by applicable law, the defense in any action for specific performance
that a remedy at law would be adequate.


 


(b)           No Inconsistent Agreements.  The Issuers will not, and will
cause the Guarantors to not, on or after the date of this Agreement enter into
any agreement with respect to their securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.  Neither the Issuers
nor any of the Guarantors has entered into any agreement granting any
registration rights with respect to its securities to any Person pursuant to
which any such Person would have the right to include any securities in any
Registration Statement to be filed with the Commission as required under this
Agreement. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Issuers’ securities under any agreement in effect on the date hereof.


 


(c)           Adjustments Affecting the Notes.  The Issuers and the Guarantors
will not take any action, or permit any change to occur, with respect to the
Notes that would materially and adversely affect their ability to Consummate
the Exchange Offer.


 


(d)           Amendments and Waivers.  The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Issuers have
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities.  Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities being tendered or registered; provided that,
with respect to any matter that directly or indirectly affects the rights of
any Initial Purchaser hereunder, the Issuers shall obtain the written consent
of each such Initial Purchaser with respect to which such amendment,
qualification, supplement, waiver, consent or departure is to be effective.


 


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


 


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


 


20






 












 


(ii)                                  If to the Initial Purchasers:


 


c/o
Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, New York 10010-3629

Facsimile:  (212) 583-8567

Attention: LCD-IBD


 


with
a copy to:


 


Cravath,
Swaine & Moore LLP

825 Eighth Avenue

New York, New York 10019

Attention:  William J. Whelan, Esq.


 


If
to the Issuers or the Guarantors:


 


c/o DJO LLC


1430 Decision Street


Vista, California 92081


Facsimile:
(760) 734-3536


Attention:  General Counsel


 


with
a copy to:


 


Simpson
Thacher & Bartlett LLP


425
Lexington Avenue


New
York, New York 10017


Facsimile:  (212) 455-2502


Attention:  Richard Fenyes, Esq.


 


All
such notices and communications shall be deemed to have been duly given:  at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.


 


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


 


(f)            Successors and Assigns.  This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder.


 


21

















 


(g)           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.


 


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


 


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


 


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


 


(k)           Entire Agreement. 
This Agreement together with the Purchase Agreement and the
Indenture (as defined in the Purchase 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 Issuers and the Guarantors with respect to the Transfer
Restricted Securities.  This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


[Signature Page Follows]


 


22

















 


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


 


 


	
   

  	
  DJO
  FINANCE LLC,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
         /s/
  Vickie L. Capps

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DJO
  FINANCE CORPORATION,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
         /s/
  Vickie L. Capps

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL PARTNERS, LLC

  ENCORE
  MEDICAL GP, LLC

  EMPI, INC.

  EMPI CORP.

  ENCORE
  MEDICAL ASSET CORPORATION

  DJO,
  LLC,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
         /s/
  Vickie L. Capps

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL L.P.,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  Encore
  Medical GP, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
         /s/
  Vickie L. Capps

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Vickie
  L. Capps

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  



 


Signature
Page to the Registration Rights Agreement


 

















 


The
foregoing Registration Rights Agreement is hereby confirmed and accepted as of
the date first above written:


 


 


	
  CREDIT
  SUISSE SECURITIES (USA) LLC, for itself and as Representative
  of the Initial Purchasers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
         /s/
  Robert Kobre

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Kobre

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  



 


 


Signature Page to the Registration Rights Agreement


 

















 


SCHEDULE A


 


Guarantors


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of Organization

  
	
   

  	
   

  	
   

  
	
  Encore
  Medical, L.P.

  	
   

  	
  Delaware

  
	
  Encore
  Medical Partners, LLC

  	
   

  	
  Nevada

  
	
  Encore
  Medical GP, LLC

  	
   

  	
  Nevada

  
	
  Empi, Inc.

  	
   

  	
  Minnesota

  
	
  Empi
  Corp.

  	
   

  	
  Minnesota

  
	
  Encore
  Medical Asset Corporation

  	
   

  	
  Nevada

  
	
  DJO,
  LLC

  	
   

  	
  Delaware

  



 


A-1

















 


ANNEX A


 


Each
broker-dealer that receives Exchange Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. 
The Letter of Transmittal states that, by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an “underwriter” within the meaning of the Securities Act.  This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Initial Notes where
such Initial Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities.  The Issuers have agreed that, for a period of
90 days after the Expiration Date (as defined herein), it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale.  See “Plan of Distribution.”


 

















 


ANNEX B


 


Each
broker-dealer that receives Exchange Securities for its own account in exchange
for Initial Notes, where such Initial Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes.  See “Plan of
Distribution.”


 

















 


ANNEX C


 


PLAN OF DISTRIBUTION


 


Each
broker-dealer that receives Exchange Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a Prospectus in connection
with any resale of such Exchange Notes. 
This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of Exchange Notes
received in exchange for Initial Notes where such Initial Notes were acquired
as a result of market-making activities or other trading activities.  The Issuers have agreed that, for a period of
90 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale.  In addition, until
[     ], 20[  ], all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.(1)


 


The
Issuers will not receive any proceeds from any sale of Exchange Notes by
broker-dealers.  Exchange Notes received
by broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Notes or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices.  Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Notes.  Any broker-dealer that resells Exchange Notes
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange Notes
may be deemed to be an “underwriter” within the meaning of the Securities Act
and any profit on any such resale of Exchange Notes and any commission or concessions
received by any such persons may be deemed to be underwriting compensation
under the Securities Act.  The Letter of
Transmittal states that, by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an “underwriter” within the meaning of the Securities Act.


 


For
a period of 90 days after the Expiration Date, the Issuers will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal.  The Issuers have agreed
to pay all of its expenses incident to the Exchange Offer and the reasonable
expenses of one counsel for the Holders other than commissions or concessions of
any brokers or dealers and will indemnify the Holders (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.


 






(1)   In
addition, the legend required by Item 502(e) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus.


 

















 


ANNEX D


 


·              CHECK HERE IF YOU ARE A
BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.


 


Name:


Address:


 


 


If
the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes.  If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Initial Notes that were acquired as a result of market-making activities or
other trading activities, it acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Notes; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit
that it is an “underwriter” within the meaning of the Securities Act.