EXHIBIT 4.16



 





EXHIBIT 4.16




REGISTRATION RIGHTS AGREEMENT




by and among




Fisher Scientific International Inc.




and




Banc of America Securities LLC



Goldman, Sachs & Co.



Deutsche Bank Securities



Credit Suisse First Boston LLC



Merrill Lynch, Pierce, Fenner & Smith Incorporated



Lazard Frères & Co. LLC




Dated as of August 3, 2004




 









 








REGISTRATION RIGHTS AGREEMENT




               This Registration Rights Agreement (the “Agreement”) is made and entered
into this 3rd day of August, 2004, among Fisher Scientific International Inc.,
a Delaware corporation (the “Company”), Banc of America Securities LLC,
Goldman, Sachs & Co., Deutsche Bank Securities, Credit Suisse First Boston LLC,
Merrill Lynch, Pierce, Fenner and Smith Incorporated and Lazard Frères & Co.
LLC (the “Initial Purchasers”).



               This Agreement is made pursuant to the Purchase Agreement, dated July 22,
2004, between the Company and the Initial Purchasers (the “Purchase
Agreement”), which provides for, among other things, the sale by the Company to
the Initial Purchasers of an aggregate of $300,000,000 principal amount of the
Company’s 63⁄4% Senior Subordinated Notes due 2014 (the “Securities”). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide to the Initial Purchasers and their direct
and indirect transferees the registration rights set forth in this Agreement.
The execution of this Agreement is a condition to the closing under the
Purchase Agreement.



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



               1. Definitions.



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




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




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




     “Affiliated Market Maker” shall mean any Initial Purchaser who is
required to by applicable law to deliver a prospectus in connection with
sales or market making activities with respect to the Exchange
Securities.




     “Apogent” shall mean Apogent Technologies Inc. and its consolidated
subsidiaries.




     “Apogent Merger” shall mean the merger of Fox Merger Corporation, a
direct, wholly-owned subsidiary of Fisher formed for the purposes of the
merger, with and into Apogent Technologies Inc., pursuant to an Agreement
and Plan of Merger, dated as of March 17, 2004, as amended on April 16,
2004.




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




     “Company” see the preamble hereto and shall also include the
Company’s successors.




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




     “Effectiveness Period” see Section 2.2(b).




     “Exchange Offer” shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.



 









 






     “Exchange Offer Registration” shall mean a registration under the
1933 Act effected pursuant to Section 2.1 hereof.




     “Exchange Offer Registration Statement” shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.




     “Exchange Period” see Section 2.1 hereof.




     “Exchange
Securities” shall mean the 63⁄4% Senior Subordinated
Notes due 2014 to be issued by the Company under the Indenture containing
terms identical to the Securities in all material respects (except that
(i) interest thereon shall accrue from the last date on which interest
was paid on the Securities or, if no such interest has been paid, from
August 3, 2004 and (ii) the transfer restrictions thereon shall be
eliminated), to be offered to Holders of Securities in exchange for
Registrable Securities pursuant to the Exchange Offer.




     “Filing Date” shall mean the earlier of (x) the 120th day following
the consummation of the Apogent Merger or (y) the day the Exchange Offer
Registration Statement is filed with the Commission.




     “Holder” shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct
and indirect transferees who become registered owners of Registrable
Securities under the Indenture and each Participating Broker-Dealer that
holds Exchange Securities for so long as such Participating Broker-Dealer
is required to deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange Securities.




     “Indenture” shall mean the Indenture relating to the Securities,
dated as of August 3, 2004, between the Company and Bank of New York, as
trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.




     “Initial Purchaser” or “Initial Purchasers” see the preamble hereto.




     “Majority Holders” shall mean the Holders of a majority of the
aggregate principal amount of outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors
on the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.




     “Participating Broker-Dealer” shall mean Banc of America Securities
LLC, Goldman, Sachs & Co., Deutsche Bank Securities, Credit Suisse First
Boston LLC, Merrill Lynch, Pierce, Fenner and Smith Incorporated and
Lazard Frères & Co. LLC, and any other broker-dealer that holds
Registrable Securities acquired for its own account as a result of market
making activities in the Securities and that will be the beneficial owner
(as defined in Rule 13d-3 under the 1934 Act) of Exchange Securities to
be received by such broker-dealer in the Exchange Offer.



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




     “Private Exchange” see Section 2.1 hereof.




     “Private Exchange Securities” see Section 2.1 hereof.




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




     “Purchase Agreement” see the preamble hereto.




     “Registration Default” see Section 2.5.




     “Registrable Securities” shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, the Securities and,
if issued, the Private Exchange Securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities or Private Exchange Securities for the exchange or resale
thereof, as the case may be, shall have been declared effective under the
1933 Act and such Securities or Private Exchange Securities, as the case
may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities, as the
case may be, have been sold to the public pursuant to Rule l44 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Securities or Private Exchange Securities, as the case may be,
shall have ceased to be Outstanding (as defined in the Indenture) or (iv)
with respect to the Securities, the Exchange Offer is consummated (except
in the case of Securities purchased from the Company and continued to be
held by the Initial Purchasers and except with respect to any Securities
as to which clause (iv) of Section 2.2 is applicable).




     “Registration Expenses” shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. (the “NASD”) registration and filing fees,
including, if applicable, the reasonable fees and expenses of any
“qualified independent underwriter” (and its counsel) that is required to
be retained by any holder of Registrable Securities in accordance with
the rules and regulations of the NASD, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky
laws and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Securities
or Registrable Securities and any filings with the NASD), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating to
the performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company,
including the expenses of any special audits or “cold comfort” letters
required by or incident to such performance and compliance, (vii) the
fees and expenses of the Trustee, and any exchange agent or custodian,
(viii) the reasonable fees and expenses of the Initial Purchasers in



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connection with the Exchange Offer, except for legal expenses which
are separately provided for in clause (ix) hereof, (ix) the reasonable
fees, disbursements and expenses of Sullivan & Cromwell LLP (or such
other counsel in lieu thereof reasonably satisfactory to the Majority
Holders and the Company) as special counsel to the Initial Purchasers in
the Exchange Offer and as special counsel representing the Holders of
Registrable Securities and (x) any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement,
but excluding underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable Securities by
a Holder.




     “Registration Statement” shall mean any registration statement of
the Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.




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




     “Securities” see the preamble hereto.




     “Shelf Registration” shall mean a registration effected pursuant to
Section 2.2 hereof.




     “Shelf Registration Event” see Section 2.2 hereof.




     “Shelf Registration Event Date” see Section 2.2 hereof.




     “Shelf Registration Statement” shall mean a “shelf” registration
statement of the Company pursuant to the provisions of Section 2.2 of
this Agreement which covers all of the Registrable Securities or all of
the Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.




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




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



            2. Registration Under the 1933 Act.



            2.1. Exchange Offer. To the extent not prohibited by any applicable law
or interpretation of the staff of the SEC, the Company shall, for the benefit
of the Holders, at the Company’s cost, use its best efforts to (A) prepare and,
as soon as practicable but not later than the Filing Date, file with the SEC an
Exchange Offer Registration Statement on an appropriate form under the 1933 Act
with respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Registrable Securities, a like principal amount of
Exchange Securities (other than Private Exchange Securities), (B) cause the
Exchange Offer Registration Statement to be declared effective under the 1933
Act within 210 days after the Filing Date, (C) keep the Exchange Offer
Registration Statement effective until the closing of the Exchange Offer and
(D) cause the Exchange Offer to be consummated within 45 days following the
Exchange Offer Registration Statement being declared effective. Upon the
effectiveness of



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the Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a
broker-dealer tendering Registrable Securities acquired directly from the
Company for its own account, (c) acquired the Exchange Securities in the
ordinary course of such Holder’s business and (d) has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the 1933 Act and under state securities or blue sky laws.




            In connection with the Exchange Offer, the Company shall:




     (a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;




     (b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred
to herein as the “Exchange Period”);




     (c) utilize the services of the Depositary for the Exchange Offer;




     (d) permit Holders to withdraw tendered Registrable Securities at
any time prior to 5:00 p.m. (New York City Time), on the last business
day of the Exchange Period, by sending to the institution specified in
the notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged;




     (e) notify each Holder that any Registrable Security not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and




     (f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.



            If any Initial Purchaser determines upon the advice of its outside counsel
that it is not eligible to participate in the Exchange Offer with respect to
the exchange of Securities constituting any portion of an unsold allotment in
the initial distribution, as soon as practicable upon receipt by the Company of
a written request from such Initial Purchaser, the Company shall,
simultaneously with the delivery of the Exchange Securities in the Exchange
Offer, issue and deliver to such Initial Purchaser in exchange (the “Private
Exchange”) for the Securities held by such Initial Purchaser, a like principal
amount of debt securities of the Company on a senior subordinated basis, that
are identical (except that such securities shall bear appropriate transfer
restrictions) to the Exchange Securities (the “Private Exchange Securities”).



            The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the TIA, or is exempt from such qualification and shall provide that the
Exchange Securities shall not be subject to the transfer restrictions set forth
in the Indenture but that the Private Exchange Securities shall be subject to
such transfer restrictions. The Indenture or such indenture



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shall provide that the Exchange Securities, the Private Exchange
Securities and the Securities shall vote and consent together on all matters as
one class and that none of the Exchange Securities, the Private Exchange
Securities or the Securities will have the right to vote or consent as a
separate class on any matter. The Private Exchange Securities shall be of the
same series as and the Company will seek to cause the CUSIP Service Bureau to
issue the same CUSIP numbers for the Private Exchange Securities as for the
Exchange Securities issued pursuant to the Exchange Offer.




               As soon as practicable after the close of the Exchange Offer, the Company
shall:




     (i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer
or the Private Exchange;




     (ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by
the Company; and




     (iii) issue, and cause the Trustee promptly to authenticate
and deliver Exchange Securities or Private Exchange Securities, as
the case may be, to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the principal
amount of the Registrable Securities of such Holder so accepted for
exchange.



               Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange,
(iii) that each Holder of Registrable Securities exchanged in the Exchange
Offer shall have represented that it is not an affiliate of the Company within
the meaning of Rule 405 under the 1933 Act or, if it is an affiliate, that such
holder will comply with the registration and prospectus delivery requirements
of the 1933 Act to the extent applicable, that all Exchange Securities to be
received by it shall be acquired in the ordinary course of its business and
that at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the 1933 Act) of the Exchange Securities and shall have
made such other representations as may be customary or reasonably necessary
under applicable SEC rules, regulations or interpretations to render the use of
Form S-4 or other appropriate form under the 1933 Act available and (iv) that
no action or proceeding shall have been instituted or threatened in any court
or by or before any governmental agency with respect to the Exchange Offer or
the Private Exchange which, in the Company’s judgment, would reasonably be
expected to impair the ability of the Company to proceed with the Exchange
Offer or the Private Exchange. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.



               Upon consummation of the Exchange Offer in accordance with this Section
2.1, the provisions of this Agreement shall continue to apply, modified as
necessary, solely with respect to Registrable Securities that are Private
Exchange Securities, Registrable Securities of the type described in clause
(iv) of Section 2.2 and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities and Securities
of the type described in clause (iv) of Section 2.2) pursuant to Section 2.2 of
this Agreement.



               2.2. Shelf Registration. In the event that (i) because of any changes in
law, SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company reasonably de-



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termines that it is not permitted to effect the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) the Exchange Offer Registration
Statement is not declared effective within 210 days after the Filing Date or
the Exchange Offer is not consummated within 45 days after the Exchange Offer
Registration Statement being declared effective, (iii) upon the request of any
of the Initial Purchasers with respect to any Registrable Securities which it
acquired directly from the Company and, with respect to other Registrable
Securities held by it, if such Initial Purchaser is not permitted, in the
opinion of counsel to such Initial Purchaser, pursuant to applicable law or
applicable interpretations of the staff of the SEC, to participate in the
Exchange Offer and thereby receive securities that are freely tradeable without
restriction under the 1933 Act and applicable blue sky or state securities laws
or (iv) if a Holder is not permitted by applicable law to participate in the
Exchange Offer based upon advice of counsel to the effect that such Holder may
not be legally able to participate in the Exchange Offer or does not receive
fully tradeable Exchange Securities pursuant to the Exchange Offer (any of the
events specified in (i)-(iv) being a “Shelf Registration Event” and the date of
occurrence thereof, the “Shelf Registration Event Date”), then the Company
shall, at its cost:





     (a) Cause to be filed as promptly as practicable after the
occurrence of such Shelf Registration Event Date (or, in the case of a
request by any Initial Purchaser, within 30 days of such request, which
shall be no earlier than the Filing Date), and thereafter shall use its
best efforts to cause to be declared effective as promptly as practicable
but no later than 210 days after the date the Shelf Registration
Statement was first filed, a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set forth in
such Shelf Registration Statement.




     (b) Use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years (or one year in
the case of a request solely by an Initial Purchaser) from the date the
Shelf Registration Statement is declared effective by the SEC, or for
such shorter period that will terminate when all Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement or cease to be outstanding or otherwise
to be Registrable Securities (the “Effectiveness Period”); provided,
however, that the Effectiveness Period in respect of the Shelf
Registration Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery requirements of
Rule 174 under the 1933 Act and as otherwise provided herein.




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



               The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.



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               2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all expenses of its counsel (other than to the extent a Registration
Expense), underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder’s Registrable Securities
pursuant to the Shelf Registration Statement.



               2.4. Effectiveness. An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume.



               2.5. Liquidated Damages. In the event that (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the
Filing Date (or, if a Shelf Registration Statement is required to be filed
because of the request of any Initial Purchaser, such Shelf Registration
Statement is not filed with the Commission on or prior to the 30th calendar day
following the request by any such Initial Purchasers that the Company file the
Shelf Registration Statement), (b) the Exchange Offer Registration Statement
has not been declared effective on or prior to the 210th calendar day following
the Filing Date or a Shelf Registration Statement is not declared effective on
or prior to the 210th calendar day following the filing of such Shelf
Registration Statement or (c) the Exchange Offer is not consummated on or prior
to the 45th calendar day following the Exchange Offer Registration Statement
being declared effective (each such event referred to in clauses (a) through
(c) above, a “Registration Default”), the Company will pay liquidated damages
to each Holder of Registrable Securities as to which such Registration Default
applies, during the period of such Registration Default, in an amount equal to
$0.192 per week per $1,000 amount of such Registrable Securities held by such
Holder until the applicable Registration Statement is filed or declared
effective, the Exchange Offer is consummated or the Shelf Registration
Statement again becomes effective, as the case may be. All accrued liquidated
damages shall be paid to Holders in the same manner as interest payments on the
Securities on semi-annual payment dates which correspond to interest payment
dates for the Securities. Following the cure of all Registration Defaults, the
accrual of liquidated damages will cease.



               3. Registration Procedures.



               In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:




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




     (b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registra-



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tion Statement effective for the applicable period; and cause each
Prospectus to be supplemented if so determined by the Company or
requested by the SEC, by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the 1933 Act and comply with the provisions of the
1933 Act, the 1934 Act and the rules and regulations thereunder
applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer);




     (c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities and each Affiliate Market Maker, at least five
business days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such
Holders that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders participating
in the Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and each Affiliated Market Maker and to each underwriter of an
underwritten offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other documents as such
Holder or Affiliated Market Maker or underwriter may reasonably request,
including financial statements and schedules and, if so requested, all
exhibits in order to facilitate the public sale or other disposition of
the Registrable Securities; and (iii) hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto and by each Affiliated Market Maker in
connection with sales or market making activities;




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




     (e) notify promptly each Holder of Registrable Securities under a
Shelf Registration, each Affiliated Market Maker and any Participating
Broker-Dealer who has notified the Company that it is utilizing the
Exchange Offer Registration Statement as provided in paragraph (f) below
and, if requested by such Holder or Affiliated Market Maker or
Participating Broker-Dealer, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii)
of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to the offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts



-9-









 






during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading, (vi) of the receipt by the Company
of any notification with respect to the suspension of the qualification
of the Registrable Securities or the Exchange Securities, as the case may
be, for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vii) of any determination by the Company
that a post-effective amendment to such Registration Statement would be
appropriate;




     (f) the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
“Plan of Distribution” which section shall be reasonably acceptable to
Banc of America Securities LLC on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect to
the potential “underwriter” status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated
by the staff of the SEC or such positions or policies, in the reasonable
judgment of the Initial Purchasers and their counsel, represent the
prevailing views of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Securities, (ii)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part
of the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered
by the Prospectus or any amendment or supplement thereto, for a period
not to exceed 180 days, and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:




“If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the Securities
Act of 1933 in connection with any resale of Exchange Securities
received in respect of such Registrable Securities pursuant to the
Exchange Offer;” and




(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning
of the 1933 Act; and




     (A) in the case of any Exchange Offer Registration Statement, the
Company agrees, if requested by the Initial Purchasers, to deliver to the
Initial Purchasers on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel or opinions
of counsel in form and substance reasonably satisfactory to the Initial
Purchasers covering the matters customarily covered in underwritten
offerings and such other matters as may be reasonably requested (it being
agreed that the matters to be covered by such opinion may be sub-



-10-









 






ject to customary qualifications and exceptions), (ii) an officers’
certificate containing certifications substantially similar to those set
forth in Section 5(c) of the Purchase Agreement and such other
certifications as are customarily delivered in a public offering of debt
securities and (iii) as well as upon effectiveness of the Exchange Offer
Registration Statement, a comfort letter or comfort letters, in customary
form if permitted by Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accountants (or if such a comfort
letter is not permitted, an agreed upon procedures letter in customary
form) from the Company’s independent certified public accountants (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements are, or are required to be, included in the
Registration Statement);




     (g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any
state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;




     (h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;




     (i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities and each Affiliated Market Maker included within
the coverage of such Shelf Registration Statement, and each underwriter,
if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by
reference and all exhibits thereto, unless requested);




     (j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least two business days
prior to the closing of any sale of Registrable Securities pursuant to
such Shelf Registration Statement;




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




     (l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment
to a Registration Statement or supple-



-11-









 






ment to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or Prospectus after initial
filing of a Registration Statement, provide copies of such document to
the Initial Purchasers on behalf of such Holders and to each Affiliated
Market Maker; and make representatives of the Company as shall be
reasonably requested by the Holders of Registrable Securities, or the
Initial Purchasers on behalf of such Holders, or Affiliated Market Makers
available for discussion of such document;




     (m) obtain a CUSIP number for all Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Securities,
Private Exchange Securities or Registrable Securities, as the case may
be, in a form eligible for deposit with the Depositary;




     (n) (i) cause the Indenture or an indenture to be qualified under
the TIA in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture or an indenture to be so qualified in a
timely manner;




     (o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions as are reasonably requested in order to expedite or
facilitate the disposition of such Registrable Securities, and in such
connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, if
requested by (x) any Initial Purchaser, in the case where an Initial
Purchasers holds Securities acquired by it as part of its initial
distribution and (y) other Holders of Securities covered thereby:




     (i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, as are
customarily made by issuers to underwriters in similar underwritten
offerings;




     (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the Holders of a majority in principal amount of the
Registrable Securities being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that
the matters to be covered by such opinion may be subject to
customary qualifications and exceptions);




     (iii) obtain “cold comfort” letters and updates thereof from
the Company’s independent certified public accountants (and, if
necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements are, or are required to be,
included in the Registration Statement) addressed to the
underwriters, with copies to each of the selling Holders of
Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in “cold comfort”
letters to underwriters in connection with similar underwritten
offerings in accordance with Statement on Auditing Standards No. 72
of the American Institute of Certified Public Accountants;



-12-









 






     (iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose
of soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar
offerings;




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




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




The above shall be done at each closing under any underwriting or similar
agreement or as and to the extent required thereunder.




     (p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case
of an Exchange Offer, make reasonably available for inspection by
representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement, any Participating Broker-Dealer and any counsel
or accountant retained by any of the foregoing (collectively, the
“Inspectors”), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the “Records”)
reasonably necessary to enable such persons to exercise any applicable
due diligence responsibilities, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration
Statement, and make such representatives of the Company available for
discussion of such documents as shall be reasonably requested by the
Initial Purchasers; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by Banc of America Securities LLC and on behalf of the other
parties, by one counsel designated by the holders of a Majority of the
Registrable Securities. Records which the Company determines, in good
faith, to be confidential and any records which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration
Statement or is otherwise required by law, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any action,
suit or proceeding or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it as a result
of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the
Company unless and until such is made generally available to the public.
Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree in writing
that it will, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow
the Company at its expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;



-13-









 






     (q) (i) in the case of an Exchange Offer Registration Statement a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an
Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers or
counsel to the Holders of Registrable Securities and make such changes in
any such document prior to the filing thereof as the Initial Purchasers
to counsel to the Holders of Registrable Securities and may reasonably
request and, except as otherwise required by applicable law, nor file any
such document in a form to which the Initial Purchasers on behalf of the
Holders of Registrable Securities and counsel to Holders of Registrable
Securities shall not have previously been advised and furnished a copy of
or to which the Initial Purchasers on behalf of the Holders of
Registrable Securities shall reasonably object and make the
representatives of the Company available for discussion of such documents
as shall be reasonably requested by the Initial Purchasers, and




               (i) in the case of a Shelf Registration, a reasonable time prior to
filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment
or supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Initial Purchasers, to counsel
on behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make such
changes in any such document prior to the filing thereof as the Initial
Purchasers, the counsel to the Holders or the underwriter or underwriters
reasonably request and not file any such document in a form to which the
Majority Holders, the Initial Purchasers on behalf of the Holders of the
Registrable Securities, counsel to the Holders of Registrable Securities
or any underwriter shall reasonably object, and make the representatives
of the Company available for discussion of such document as shall be
reasonably requested by the Holders of Registrable Securities, the
Initial Purchasers on behalf of such Holders, or any underwriter;




     (r) in the case of a Shelf Registration, use its best efforts to
cause all Registrable Securities to be listed on any securities exchange
on which similar debt securities issued by the Company are then listed if
requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if
any;




     (s) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rerated by the appropriate rating
agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;




     (t) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
available to its security holders an earning statement satisfying the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder (or
any similar rule promulgated under the 1933 Act) no later than the end of
any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statement shall cover said 12-month
periods;




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



-14-









 






     (v) upon consummation of an Exchange Offer or a Private Exchange, if
requested by the Trustee, obtain a customary opinion of counsel to the
Company addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or Private
Exchange, and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Securities and/or Private
Exchange Securities, as applicable and the related indenture, and (ii)
each of the Exchange Securities and related indenture constitute a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms (in each case with
customary exceptions).



               The Company may (as a condition to such Holder’s participation in the
Shelf Registration) require each Holder of Registrable Securities to furnish to
the Company such information regarding the Holder and the proposed distribution
by such Holder of such Registrable Securities for inclusion in any Shelf
Registration Statement or Prospectus included therein as the Company may from
time to time reasonably request in writing. The Company shall have no
obligation to register under the 1933 Act the Registrable Securities of a
seller who so fails to furnish such information within a reasonable time after
receiving such request. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.



               In the case of a Shelf Registration Statement, each Holder and each
Affiliated Market Maker agrees that, upon receipt of any notice from the
Company of the occurrence of a circumstance contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Person’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in such Person’s possession
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.



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



                4. Indemnification; Contribution.



               (a) In connection with any Registration Statement, the Company agrees to
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each person who participates as an underwriter
(any such person being an “Underwriter”) and each Person, if any, who controls
any Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:




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



-15-









 






fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;




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




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



provided, however, that the indemnity agreement of this Section 4 shall not
apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished to
the Company by the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto); provided, further, that the Company shall not be liable to
any such Holder, Participating Broker-Dealer or controlling person, with
respect to any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary Prospectus to the extent that any such
loss, liability, claim, damage or expense of any Holder, Participating
Broker-Dealer or controlling person results from the fact that such Holder or
Participating Broker-Dealer sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the final Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to such Holder or Participating
Broker-Dealer and the loss, liability, claim, damage or expense of such Holder,
Participating Broker-Dealer or controlling person results from an untrue
statement or omission of a material fact contained in the preliminary
Prospectus which was corrected in the final Prospectus. Any amounts advanced
by the Company to an indemnified party pursuant to this Section 4 as a result
of such losses shall be returned to the Company if it shall be finally
determined by such a court in a judgment not subject to appeal or final review
that such indemnified party was not entitled to indemnification by the Company.




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



-16-









 





               (c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure
so to notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of the indemnity agreement of this
Section 4. An indemnifying party may participate at its own expense in the
defense of such action. If an indemnifying party so elects within a reasonable
time after receipt of such notice, an indemnifying party, severally or jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and reasonably acceptable to
the indemnified parties defendant (or target of) in such action, provided,
however, that if (i) representation of such indemnified party by the same
counsel would present a conflict of interest or (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and any such indemnified party reasonably
determines that there may be legal defenses available to such indemnified party
which are different from or in addition to those available to such indemnifying
party, then in the case of clauses (i) or (ii) of this Section 4(c) such
indemnifying party and counsel for each indemnifying party or parties shall not
be entitled to assume such defense. If an indemnifying party is not entitled
to assume the defense of such action as a result of the proviso to the
preceding sentence, counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties. If an
indemnifying party assumes the defense of such action, in accordance with and
as permitted by the provisions of this paragraph, such indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying party or parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.



               (d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.



               (e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, dam-



-17-









 





ages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand, and the Holders and the Initial Purchasers on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.




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



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



               Notwithstanding the provisions of this Section 4(e), no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.



               For purposes of this Section 4(e), each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.



               5.
Additional Agreements with Respect to Affiliated Market Makers.




               5.1. From and after the effectiveness of any Registration Statement, the
Company shall, for so long as any Securities, Exchange Securities or Private
Exchange Securities are outstanding and any Affiliated Market Maker is required
by applicable law in the judgment of counsel to the Initial Purchasers, after
consultation with counsel to the Company to deliver a prospectus in connection
with sales or market making activities, periodically amend each Registration
Statement or amend each Prospectus covering Securities, Exchange Securities or
Private Exchange Securities to reflect the occurrence of any fact or
information becoming known to the Company that should be set forth in an
amendment to any such Registration Statement or in a supplement to any such
Prospectus so that each such Prospectus, when delivered by an Affiliated Market
Maker to a purchaser in connection with sales or market marking activities of
such Affiliated Market Maker, will comply with applicable law.



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               5.2. Prior to filing any amendment to any such Registration Statement or
any supplement to any such Prospectus, the Company shall furnish a reasonable
period of time prior to the proposed filing thereof to each Affiliated Market
Maker and their counsel copies of all such documents proposed to be filed,
which documents shall be subject to review. The Company shall provide to each
Affiliated Market Maker and such counsel such reasonable number of copies of
each filed amendment or supplement as shall be requested and hereby consents to
the use of such Prospectus or any amendment or supplement thereto by each
Affiliated Market Maker in connection with sales or market making activities
with respect to the Securities, Exchange Securities or Private Exchange
Securities.



               5.3. In connection with any such sales or market making activities as
contemplated by this Section 5, the Company agrees to indemnify each Affiliated
Market Maker, and if applicable to contribute to such Affiliated Market Maker
and such Affiliated Market Maker agrees to indemnify the Company, and if
applicable to contribute to the Company, in each case in a manner substantially
identical to that specified in Section 4 hereof.



               5.4. In the case of a Registration Statement, each Affiliated Market Maker
agrees that, upon receipt of any notice from the Company of the occurrence of a
circumstance contemplated by the following:




     (i) the happening of any event or the discovery of any facts during
the period a Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading; or




     (ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Exchange Securities, for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, such Affiliated Market Maker will forthwith discontinue
disposition of such Exchange Securities, pursuant to a Registration
Statement until such Person’s receipt of the copies of the supplemented
or amended Prospectus in accordance with the following:




     (iii) that as promptly as practicable after the occurrence of an
event contemplated by (i) and (ii) of this Section 5.4, the Company shall
use its best efforts to prepare a supplement or post-effective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Exchange
Securities, such Prospectus will not contain at the time of such delivery
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading or will remain so qualified.



               Further, if so directed by the Company, such Affiliated Market Maker will
deliver to the Company (at its expense) all copies in such Person’s possession
of the Prospectus covering such Exchange Securities current at the time of
receipt of such notice.



               6. Miscellaneous.



               6.1. Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act and any Registrable
Securities remain outstanding, the Company will file the reports required to be
filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and
the rules and regulations adopted by the SEC thereunder. If the Company ceases
to be so required to file such reports, the Company covenants that it will upon
the request of any Holder of



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




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



               6.3. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at
least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure.



               6.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6.4, which address initially shall be the address set forth in
Section 12 of the Purchase Agreement with respect to the Initial Purchasers;
and (b) if to the Company, initially at the Company’s address set forth in
Section 12 of the Purchase Agreement, and thereafter at such other address of
which notice is given in accordance with the provisions of this Section 6.4.



               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 is 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 under the
Indenture, at the address specified in such Indenture.



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



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and, if applicable, the Purchase Agreement, and such person shall be
entitled to receive the benefits hereof.




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



               6.7. Specific Enforcement. Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Section 2.1 through 2.4
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company’s obligations
under Section 2.1 through 2.4 hereof.



               6.8. 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.



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



               6.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.



               6.11. 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.



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



	 	 	 	 	 
	 	 	FISHER SCIENTIFIC INTERNATIONAL INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ KEVIN P. CLARK
	

	 	 	 	
 
	

	 	 	 	Name: Kevin P. Clark
	

	 	 	 	Title: Vice President and Chief Financial Officer







Confirmed and accepted as of

the date first above written:



BANC OF AMERICA SECURITIES LLC

GOLDMAN, SACHS & CO.

DEUTSCHE BANK SECURITIES

CREDIT SUISSE FIRST BOSTON LLC

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

LAZARD FRÈRES & CO. LLC



	 	 	 
	BY: BANC OF AMERICA SECURITIES LLC
	 
	 	 
	By:

	 	/s/ LEX MAULTSBY
	

	 	
 
	

	 	Authorized Signatory