Unassociated Document


     

    REGISTRATION
RIGHTS AGREEMENT

     

    Dated as
of September 21, 2010

     

    By and
Among

     

    ALERE
INC.,

     

    the
GUARANTORS named herein

     

    and

     

    JEFFERIES
& COMPANY, INC.,

     

    GOLDMAN,
SACHS & CO.

     

    and

     

    CITIGROUP
GLOBAL MARKETS INC.

     

    as
Representatives of the several Initial Purchasers

     

    8.625%
Senior Subordinated Notes due 2018


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    TABLE OF
CONTENTS

     

    
      
        
          	
                  Section
      1. DEFINITIONS

                	 	 	2	 
	 
      	 	 	 	 
	
                  Section
      2. EXCHANGE OFFER

                	 	 	5	 
	 
      	 	 	 	 
	
                  Section
      3. ADDITIONAL INTEREST

                	 	 	7	 
	 
      	 	 	 	 
	
                  Section
      4. REGISTRATION PROCEDURES

                	 	 	8	 
	 
      	 	 	 	 
	
                  Section
      5. REGISTRATION EXPENSES

                	 	 	14	 
	 
      	 	 	 	 
	
                  Section
      6. INDEMNIFICATION

                	 	 	15	 
	 
      	 	 	 	 
	
                  Section
      7. RULES 144 AND 144A

                	 	 	18	 
	 
      	 	 	 	 
	
                  Section
      8. MISCELLANEOUS

                	 	 	18	 


        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    REGISTRATION
RIGHTS AGREEMENT

     

    This
Registration Rights Agreement (this “AGREEMENT”) is dated as of September 21,
2010, by and among ALERE INC. (formerly, Inverness Medical Innovations, Inc.), a
Delaware corporation (the “COMPANY”), and each of the Guarantors (as defined
herein) (the Company and the Guarantors are referred to collectively herein as
the “ISSUERS”), on the one hand, and JEFFERIES & COMPANY, INC., GOLDMAN,
SACHS & CO. and CITIGROUP GLOBAL MARKETS INC. (collectively, the
“REPRESENTATIVES”), as representatives of the several Initial Purchasers named
on Schedule A of the Purchase Agreement (the “PURCHASE AGREEMENT”), dated as of
September 15, 2010, by and among the Issuers and such Initial Purchasers (the
“INITIAL PURCHASERS”), on the other hand.

     

    This
Agreement is entered into in connection with the Purchase Agreement, which
relates to the offering of $400,000,000 aggregate principal amount of 8.625%
Senior Subordinated Notes due 2018 of the Company pursuant thereto (including
the guarantees thereof by the Guarantors, the “NOTES”). The execution and
delivery of this Agreement is a condition to the Initial Purchasers’ obligation
to purchase the Notes under the Purchase Agreement.

     

    The
parties hereby agree as follows:

     

    Section
1. DEFINITIONS

     

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

     

    “ACTION”
shall have the meaning set forth in Section 6(c) hereof.

     

    “ADDITIONAL
INTEREST” shall have the meaning set forth in Section 3(a) hereof.

     

    “ADDITIONAL
INTEREST PAYMENT DATE” shall have the meaning set forth in Section 3(b)
hereof.

     

    “ADVICE”
shall have the meaning set forth in Section 4 hereof.

     

    “AGREEMENT”
shall have the meaning set forth in the first introductory paragraph
hereto.

     

    “APPLICABLE
PERIOD” shall have the meaning set forth in Section 2(b) hereof.

     

    “BOARD OF
DIRECTORS” shall have the meaning set forth in Section 4 hereof.

     

    “BUSINESS
DAY” shall mean a day that is not a Legal Holiday.

     

    “COMPANY”
shall have the meaning set forth in the introductory paragraph hereto and shall
also include the Company’s successors and assigns.


    
      
         


      

      
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    “COMMISSION”
shall mean the Securities and Exchange Commission.

     

    “DAY”
shall mean a calendar day.

     

    “EXCHANGE
ACT” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.

     

    “EXCHANGE
NOTES” shall have the meaning set forth in Section 2(a) hereof.

     

    “EXCHANGE
OFFER” shall have the meaning set forth in Section 2(a) hereof.

     

    “EXCHANGE
OFFER REGISTRATION STATEMENT” shall have the meaning set forth in Section 2(a)
hereof.

     

    “FREELY
TRANSFERABLE” shall mean, with respect to any Note, that if it were not held by
an affiliate (as defined in Rule 405 under the Securities Act) of the Company,
it (i) may be resold to the public in accordance with Rule 144 without volume
limitations, (ii) does not bear any restrictive legends relating to the
Securities Act or, solely with respect to Notes in certificated form, the Holder
thereof is entitled to have such legends removed and (iii) does not bear a
restricted CUSIP number.

     

    “FINRA”
shall mean the Financial Industry Regulatory Authority, Inc.

     

    “GUARANTORS”
means each signatory to this Agreement on the date hereof (other than the
Company and the Initial Purchasers), and each Person who executes and delivers a
counterpart of this Agreement hereafter pursuant to Section 8(d)
hereof.

     

    “HOLDER”
shall mean any holder of a Note or Notes including any Participating
Broker-Dealer holding a Note or Notes.

     

    “INDENTURE”
shall mean the May 2009 Base Indenture as supplemented by the Ninth Supplemental
Indenture dated September 21, 2010, by and among the Issuers and U.S. Bank
National Association, as trustee, pursuant to which the Notes are being issued,
as may be supplemented or amended from time to time in accordance with its
terms.

     

    “INITIAL
PURCHASERS” shall have the meaning set forth in the first introductory paragraph
hereof.

     

    “INSPECTORS”
shall have the meaning set forth in Section 4(k) hereof.

     

    “ISSUE
DATE” shall mean September 21, 2010, the date of issuance of the
Notes.

     

    “ISSUERS”
shall have the meaning set forth in the first introductory paragraph
hereto.


    
      
         


      

      
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    “LEGAL
HOLIDAY” shall mean a Saturday, a Sunday or a day on which banking institutions
in New York, New York are required by law, regulation or executive order to
remain closed.

     

    “LOSSES”
shall have the meaning set forth in Section 6(a) hereof.

     

    “MAY 2009
BASE INDENTURE” shall mean the Indenture, dated as of May 12, 2009, by and among
the Company, as issuer, and U.S. Bank National Association, as
trustee.

     

    “NOTES”
shall have the meaning set forth in the second introductory paragraph
hereto.

     

    “PARTICIPANT”
shall have the meaning set forth in Section 6(a) hereof.

     

    “PARTICIPATING
BROKER-DEALER” shall have the meaning set forth in Section 2(b)
hereof.

     

    “PERSON”
shall mean an individual, corporation, partnership, joint venture association,
joint stock company, trust, unincorporated limited liability company, government
or any agency or political subdivision thereof or any other entity.

     

    “PROSPECTUS”
shall mean the prospectus included in the Exchange Offer Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such
Prospectus.

     

    “PURCHASE
AGREEMENT” shall have the meaning set forth in the first introductory paragraph
hereof.

     

    “RECORDS”
shall have the meaning set forth in Section 4(k) hereof.

     

    “REGISTRATION
DEFAULT” shall have the meaning set forth in Section 3(a) hereof.

     

    “REGISTRATION
STATEMENT” shall mean any appropriate registration statement of the Issuers
covering any of the Exchange Notes filed with the Commission under the
Securities Act, 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.

     

    “REQUESTING
PARTICIPATING BROKER-DEALER” shall have the meaning set forth in Section 2(b)
hereof.


    
      
         


      

      
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    “RULE
144” shall mean Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the Commission providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.

     

    “RULE
144A” shall mean Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the Commission.

     

    “RULE
424(B)” shall mean Rule 424(b) promulgated under the Securities Act, as such
Rule may be amended from time to time.

     

    “SECURITIES
ACT” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.

     

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

     

    “TRUSTEE”
shall mean the trustee under the Indenture and the trustee (if any) under any
indenture governing the Exchange Notes.

     

    Section
2. EXCHANGE OFFER

     

    (a)           The
Issuers shall (i) file a Registration Statement (the “EXCHANGE OFFER
REGISTRATION STATEMENT”) within 150 days after the Issue Date with the
Commission on an appropriate registration form with respect to a registered
offer (the “EXCHANGE OFFER”) to exchange any and all of the Notes for a like
aggregate principal amount of notes (including the guarantees with respect
thereto, the “EXCHANGE NOTES”) that are identical in all material respects to
the Notes (except that the Exchange Notes shall not be subject to terms with
respect to transfer restrictions or Additional Interest upon a Registration
Default), which Exchange Notes may be issued, at the Company’s option, under the
Indenture or any other indenture or supplemental indenture satisfying the
requirements of this Agreement, (ii) use their commercially reasonable efforts
to cause the Exchange Offer Registration Statement to be declared effective
under the Securities Act within 240 days after the Issue Date and (iii) use
their commercially reasonable efforts to consummate the Exchange Offer within
270 days after the Issue Date.  Upon the Exchange Offer Registration
Statement being declared effective by the Commission, the Issuers will offer the
Exchange Notes in exchange for surrender of the Notes.  The Issuers
shall keep the Exchange Offer open for not less than 30 days (or longer if
required by applicable law) after the date notice of the Exchange Offer is
mailed to Holders.

     

    Each
Holder that participates in the Exchange Offer will be required to represent to
the Issuers in writing that (i) any Exchange Notes to be received by it will be
acquired in the ordinary course of its business, (ii) it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes in violation of the
provisions of the Securities Act, (iii) it is not an affiliate of the Company or
any Guarantor as defined by Rule 405 of the Securities Act, or if it is an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, it is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes.


    
      
         


      

      
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    (b)           The
Issuers and the Initial Purchasers acknowledge that the staff of the Commission
has taken the position that any broker-dealer that elects to exchange Notes that
were acquired by such broker-dealer for its own account as a result of
market-making or other trading activities for Exchange Notes in the Exchange
Offer (a “PARTICIPATING BROKER-DEALER”) may be deemed to be an “underwriter”
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes.

     

    The
Issuers and the Initial Purchasers also acknowledge that the staff of the
Commission has taken the position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts (other than a resale of an
unsold allotment resulting from the original offering of the Notes), so long as
the Prospectus otherwise meets the requirements of the Securities
Act.

     

    In light
of the foregoing, if requested in writing prior to the expiration of the
Exchange Offer by a Participating Broker-Dealer (a “REQUESTING PARTICIPATING
BROKER-DEALER”), the Issuers agree to use their commercially reasonable efforts
to keep the Exchange Offer Registration Statement continuously effective for a
period of 45 days after the date on which the Exchange Offer Registration
Statement is declared effective or, if extended pursuant to the penultimate
paragraph of Section 4 hereof, such longer period (such period, the “APPLICABLE
PERIOD”), or such earlier date as all Requesting Participating Broker-Dealers
shall have notified the Company in writing that such Requesting Participating
Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer.
The Issuers shall include a plan of distribution in such Exchange Offer
Registration Statement that meets the requirements set forth in the preceding
paragraph.

     

    In
connection with the Exchange Offer, the Issuers shall:

     

    (1)           mail
or cause to be mailed to each Holder entitled to participate in the Exchange
Offer a copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;

     

    (2)           utilize
the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York;


    
      
         


      

      
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    (3)           permit
Holders to withdraw tendered Notes at any time prior to the 5:00 p.m., New York
time, on the last Business Day on which the Exchange Offer shall remain open;
and

     

    (4)           otherwise
comply in all material respects with all applicable laws, rules and
regulations.

     

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

     

    (1)           accept
for exchange all Notes validly tendered and not validly withdrawn by the Holders
pursuant to the Exchange Offer;

     

    (2)           deliver
or cause to be delivered to the Trustee for cancellation all Notes so accepted
for exchange; and

     

    (3)           cause
the Trustee to authenticate and deliver promptly to each such Holder Exchange
Notes equal in principal amount to the Notes of such Holder so accepted for
exchange.

     

    The
Exchange Offer shall not be subject to any conditions, other than that (i) the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers to proceed with the Exchange Offer
and (iii) all governmental approvals shall have been obtained, which approvals
the Company deems necessary for the consummation of the Exchange
Offer.

     

    The
Exchange Notes shall be issued under the Indenture (with such changes as are
necessary to comply with any requirements of the Commission to effect or
maintain the qualification thereof under the TIA) or such other indenture or
supplemental indenture as shall fulfill the requirements of this Agreement and
the TIA and which, in either case, shall have been qualified under the TIA and
shall provide that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the applicable indenture or supplemental
indenture.

     

    Section
3. ADDITIONAL INTEREST

     

    (a)           The
Issuers and the Initial Purchasers agree that the Holders will suffer damages if
the Issuers fail to fulfill their obligations under Section 2 hereof and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers agree that if:

     

    (i)           the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 150th day following the Issue Date or, if that day is not a
Business Day, the next day that is a Business Day,

     

    (ii)           the
Exchange Offer Registration Statement is not declared effective on or prior to
the 240th day following the Issue Date or, if that day is not a Business Day,
the next day that is a Business Day, or


    
      
         


      

      
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    (iii)           the
Exchange Offer is not consummated on or prior to the 270th day following the
Issue Date, or, if that day is not a Business Day, the next day that is a
Business Day,

     

    (each
such event referred to in clauses (i) through (iii), a “REGISTRATION DEFAULT”),
additional interest in the form of additional cash interest (“ADDITIONAL
INTEREST”) will accrue on the Notes. The rate of Additional Interest will be
0.25% per annum for the first 90-day period immediately following the occurrence
of a Registration Default, increasing by an additional 0.25% per annum with
respect to each subsequent 90-day period up to a maximum amount of Additional
Interest of 1.00% per annum, from and including the date on which any such
Registration Default shall occur to, but excluding, the earlier of (1) the date
on which all Registration Defaults have been cured or (2) the date on which all
the Notes (other than Notes which constitute an unsold allotment) otherwise
become Freely Transferable without further registration under the Securities
Act. If, after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the rate of Additional Interest for such
subsequent Registration Default shall initially be 0.25% regardless of the rate
in effect with respect to any prior Registration Default at the time of cure of
such Registration Default.  Upon the expiration of the Applicable
Period the Issuers shall have no further registration obligations.

     

    Notwithstanding
the foregoing, the amount of Additional Interest payable shall not increase
because more than one Registration Default has occurred and is
pending.

     

    (b)           Until
the earliest of (i) the date no Notes remain outstanding, (ii) the consummation
of the Exchange Offer and (iii) the date on which all the Notes (other than
Notes which constitute an unsold allotment) otherwise become Freely Transferable
without further registration under the Securities Act, the Company shall notify
the Trustee within five Business Days after each and every date on which a
Registration Default occurs in respect of which Additional Interest is required
to be paid. Any amounts of Additional Interest due pursuant to clauses (a)(i),
(a)(ii) or (a)(iii) of this Section 3 will be payable in cash semi-annually on
each April 1 and October 1 (each a “ADDITIONAL INTEREST PAYMENT DATE”),
commencing with the first such date occurring after any such Additional Interest
commences to accrue, to Holders to whom regular interest is payable on such
Additional Interest Payment Date. The amount of Additional Interest will be
determined by multiplying the applicable rate of Additional Interest by the
aggregate principal amount of all Notes outstanding on the first Additional
Interest Payment Date following such Registration Default in the case of the
first such payment of Additional Interest with respect to a Registration Default
(and thereafter at the next succeeding Additional Interest Payment Date until
the cure of such Registration Default), multiplied by a fraction, the numerator
of which is the number of days such Additional Interest rate was applicable
during such period (determined on the basis of a 360-day year comprised of
twelve 30-day months and, in the case of a partial month, the actual number of
days elapsed), and the denominator of which is 360.

     

    Section
4. REGISTRATION PROCEDURES

     

    In
connection with the filing of the Exchange Offer Registration Statement pursuant
to Section 2 hereof, the Issuers shall effect such registration to permit the
exchange or sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with the Exchange Offer Registration Statement filed by the Issuers
hereunder, the Issuers shall:


    
      
         


      

      
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    (a)           Prepare
and file with the Commission the Exchange Offer Registration Statement
prescribed by Section 2 hereof, and use their commercially reasonable efforts to
cause such Exchange Offer Registration Statement to become effective and their
commercially reasonable efforts to cause such Exchange Offer Registration
Statement to remain effective as provided herein.

     

    (b)           Prepare
and file with the Commission such amendments and post-effective amendments to
the Exchange Offer Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the Applicable Period, and
cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the Securities
Act.

     

    (c)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required under the Securities Act to be
delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period and from whom the Company has received written
notice that such Participating Broker-Dealer will be a Participating
Broker-Dealer in the applicable Exchange Offer, notify each such Participating
Broker-Dealer and its counsel (if such counsel is known to the Issuers) as
promptly as possible, and, if requested by any such Person, confirm such notice
in writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Exchange Offer Registration
Statement or any post-effective amendment thereto, when the same has become
effective under the Securities Act (including in such notice a written statement
that any Requesting Participating Broker Dealer may, upon request, obtain, at
the sole expense of the Issuers, one conformed copy of the Exchange Offer
Registration Statement or post-effective amendment thereto, including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Exchange Offer Registration Statement
or of any order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) of the receipt by any of
the Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of the Exchange Offer or the offer
or sale of any of the Exchange Notes in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (iv) of the happening of any
event, the existence of any condition or any information becoming known to any
Issuer that makes any statement made in the Exchange Offer Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to the
Exchange Offer Registration Statement, Prospectus or such documents so that, in
the case of the Exchange Offer Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and that in the case of the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (v) of the
Company’s determination that a post-effective amendment to the Exchange Offer
Registration Statement would be appropriate.


    
      
         


      

      
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    (d)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required under the Securities Act to be
delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use their commercially reasonable efforts to
prevent the issuance of any order suspending the effectiveness of the Exchange
Offer Registration Statement or of any order preventing or suspending the use of
a Prospectus or suspending the qualification (or exemption from qualification)
of the offer or sale of any of the Exchange Notes in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to obtain the
withdrawal of any such order at the earliest practicable moment.

     

    (e)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period and if reasonably requested by any
Participating Broker-Dealer, (i) promptly incorporate in such Registration
Statement or Prospectus such information as any Participating Broker-Dealer
(based upon advice of counsel), determines is reasonably necessary to be
included therein, provided that the Issuers are entitled to incorporate such
information by means of a prospectus supplement filed pursuant to Rule 424(b)
and (ii) make all required filings of such prospectus supplement as soon as
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement, provided, however, that the Issuers
shall not be required to take any action that would, in the written opinion of
counsel to the Issuers, violate applicable laws.

     

    (f)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required under the Securities Act to be
delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, furnish to each such Participating Broker-Dealer
who so requests in writing and their counsel (if such counsel is known to the
Issuers), at the sole expense of the Issuers, one conformed copy of the Exchange
Offer Registration Statement and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated therein by reference and all exhibits as soon as reasonably
practicable after the filing of such documents with the Commission.

     

    (g)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required under the Securities Act to be
delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, deliver to each such Participating Broker-Dealer
and its counsel (if such counsel is known to the Issuers), at the sole expense
of the Issuers, as many copies of the Prospectus or Prospectuses and each
amendment or supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the last
paragraph of this Section 4, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each such Participating
Broker-Dealer, in connection with the sale by Participating Broker-Dealers of
the Exchange Notes pursuant to such Prospectus and any amendment or supplement
thereto.


    
      
         


      

      
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    (h)           Prior
to any public offering of Exchange Notes or any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use
their commercially reasonable efforts to register or qualify, and to cooperate
with each such Participating Broker-Dealer and its counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Exchange Notes for offer and sale under the securities or
“blue sky” laws of such jurisdictions within the United States as any
Participating Broker-Dealer reasonably requests in writing, and to use their
commercially reasonable efforts to cause the Issuers’ counsel to perform “blue
sky” investigations and file registrations and qualifications required to be
filed pursuant to this Section 4(h); use their commercially reasonable efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the Applicable Period and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes covered by the Exchange Offer Registration
Statement; PROVIDED, HOWEVER, that no Issuer shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified,
(B) take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction where it
is not then so subject.

     

    (i)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required under the Securities Act to be
delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, upon the occurrence of any event contemplated by
Section 4(c)(iv) or 4(c)(v) hereof, as promptly as practicable prepare and
(subject to the penultimate paragraph of this Section 4) file with the
Commission, at the sole expense of the Issuers, a supplement or post-effective
amendment to the Exchange Offer Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Exchange Notes to whom such Prospectus will
be delivered by a Participating Broker-Dealer, any such Prospectus will not
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, in
the light of the circumstances under which they were made, not
misleading.

     

    (j)           Prior
to the effective date of the Exchange Offer Registration Statement, (i) provide
the Trustee with certificates for the Exchange Notes in a form eligible for
deposit with The Depository Trust Company and (ii) obtain and provide a CUSIP
number for the Exchange Notes.


    
      
         


      

      
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    (k)           If
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required under the Securities Act to be
delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, make available for inspection by each such
Participating Broker-Dealer, and any attorney, accountant or other agent
retained by each such Participating Broker-Dealer (collectively, the
“INSPECTORS”), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
instruments of the Company and its subsidiaries (collectively, the “RECORDS”) as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement and
Prospectus. Prior to receiving access to any Records, each Inspector shall enter
into a written agreement reasonably satisfactory to the Company to the effect
that it will keep the Records and all such information confidential and that it
will not, without the prior written consent of the Company, disclose, or use for
any purposes other than in connection with its due diligence investigation, any
Records or any such information that the Company determines, in good faith, to
be confidential and that it notifies the Inspectors in writing are or is
confidential unless (i) the release of such Records or any such information
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (ii) disclosure of such information is necessary or advisable
in the opinion of counsel for an Inspector in connection with any action, claim,
suit or proceeding, directly or indirectly, involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or the Purchase
Agreement, or any transactions contemplated hereby or thereby or arising
hereunder or thereunder, or (iii) the information in such Records or such
information has been made generally available to the public other than as a
result of a disclosure or failure to safeguard such information by an Inspector;
provided, however, that (A) each Inspector shall agree to use reasonable
best efforts to provide notice to the Company of the potential disclosure of any
information by such Inspector pursuant to clause (i) or (ii) of this sentence to
permit the Issuers to obtain a protective order (or waive the provisions of this
paragraph (k)) and (B) each such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information to the
extent such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Participating
Broker-Dealer.

     

    (l)           Provide
an indenture trustee for the Exchange Notes and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the TIA not
later than the effective date of the Exchange Offer; and in connection
therewith, cooperate with the trustee under any such indenture to effect such
changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use their
commercially reasonable efforts to cause such 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 Commission to enable such indenture to be so
qualified in a timely manner.

     

    (m)           Comply
with all applicable rules and regulations of the Commission and make generally
available to the Company’s securityholders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after 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), commencing on the first day of the
first fiscal quarter of the Company after the effective date of the Exchange
Offer Registration Statement, which statement shall cover said 12-month period
consistent with the requirements of Rule 158.

     

    (n)           Upon
the written request of a Holder, after consummation of the Exchange Offer, use
their commercially reasonable efforts to obtain an opinion of counsel to the
Issuers, in a form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Notes participating in the Exchange
Offer that the Exchange Notes and the related indenture constitute legal, valid
and binding obligations of the Issuers, enforceable against the Issuers in
accordance with their respective terms, subject to customary exceptions and
qualifications.


    
      
         


      

      
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    (o)           If
the Exchange Offer is to be consummated, upon delivery of the Notes by Holders
to the Company (or to such other Person as directed by the Company) in exchange
for the Exchange Notes, mark, or cause to be marked, on such Notes that such
Notes are being cancelled in exchange for the Exchange Notes; PROVIDED, HOWEVER,
that in no event shall such Notes be marked as paid or otherwise
satisfied.

     

    (p)           Use
their commercially reasonable efforts to take all other steps reasonably
necessary or advisable to effect the registration of the Exchange
Notes.

     

    The
Company may require each seller of Exchange Notes as to which any registration
is being effected to furnish to the Company such information regarding such
seller and the distribution of such Exchange Notes as the Company may, from time
to time, reasonably request. The Company may exclude from such registration the
Exchange Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request and in the
event of such an exclusion, the Issuers shall have no further obligation under
this Agreement (including, without limitation, the obligations under Section 3)
with respect to such seller or any subsequent Holder of such Exchange
Notes.  Each seller of Exchange Notes agrees to furnish promptly to
the Company all information required to be disclosed in order to make any
information previously furnished to the Company by such seller not materially
misleading.

     

    If any
such Registration Statement refers to any Holder by name or otherwise as the
holder of any securities of the Company or the Guarantors, then such
Registration Statement shall include language generally to the effect that the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company or the
Guarantors.  The Issuers shall not refer by name to any Holder unless
the Issuers reasonably determine, at their sole discretion, that such disclosure
is required.

     

    Each
Participating Broker-Dealer agrees by acquisition of Notes or Exchange Notes
that, upon actual receipt of any notice from the Company (x) of the happening of
any event of the kind described in Section 4(c)(ii), 4(c)(iii), 4(c)(iv) or
4(c)(v) hereof, or (y) that the Board of Directors of the Company (the “BOARD OF
DIRECTORS”) has resolved that the Company has a bona fide business purpose for
doing so, then the Issuers may delay the filing or the effectiveness of the
Exchange Offer Registration Statement (if not then filed or effective, as
applicable) and shall not be required to maintain the effectiveness thereof or
amend or supplement the Exchange Offer Registration Statement, in all cases, for
a period (a “DELAY PERIOD”) expiring upon the earlier to occur of (i) in the
case of the immediately preceding clause (x), such Participating Broker-Dealer’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(i) hereof or until it is advised in writing (the “ADVICE”) by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuer’s
obligations to file or maintain the effectiveness of the Exchange Offer
Registration Statement pursuant to this Agreement or (B) 90 days after the
Company notifies the Participating Broker-Dealers of such good faith
determination. There shall not be more than 90 days of Delay Periods. The
Applicable Period shall be extended by the number of days during any Delay
Period. Any Delay Period will not alter the obligations of the Issuers to pay
Additional Interest under the circumstances set forth in Section 3 hereof with
respect to any Registration Default. Each Participating Broker-Dealer agrees by
acquisition of Notes or Exchange Notes to keep any notice and the existence of
any Delay Period confidential.


    
      
         


      

      
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    In the
event of any Delay Period pursuant to clause (y) of the preceding paragraph,
notice shall be given as soon as practicable after the Board of Directors makes
such a determination of the need for a Delay Period and shall state, to the
extent practicable, an estimate of the duration of such Delay Period and shall
advise the recipient thereof of the agreement of such Holder provided in the
next succeeding sentence. Each Participating Broker-Dealer, by his or its
acceptance of any Exchange Note, agrees that during any Delay Period, each
Participating Broker-Dealer will discontinue disposition of such Exchange Notes
covered by such Registration Statement or Prospectus.

     

    Section
5. REGISTRATION EXPENSES

     

    All fees
and expenses incident to the Issuer’s performance of or compliance with this
Agreement (other than any discounts or commissions) shall be borne by the
Issuers, whether or not the Exchange Offer Registration Statement is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses of compliance with state securities or “blue sky” laws
(including, without limitation, fees and disbursements of counsel in connection
with “blue sky” qualifications of the Exchange Notes and determination of the
eligibility of the Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Notes are located, in the case of an
Exchange Offer, or (y) as provided in Section 4(h) hereof, in the case of
Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested in respect of Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers, (v) fees and disbursements of all independent certified public
accountants of the Issuers, (vi) Securities Act liability insurance, if the
Issuers desires such insurance, (vii) fees and expenses of all other Persons
retained by any of the Issuers, (viii) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
and the obtaining of a rating of the securities, in each case, if applicable,
(xi) any required fees and expenses incurred in connection with any filing
required to be made with FINRA, and (xii) the expenses relating to printing,
word processing and distributing the Exchange Offer Registration Statement and
any other documents necessary in order for the Issuers to comply with their
obligations under this Agreement.  Notwithstanding the foregoing or
anything to the contrary in this Agreement, each Participating Broker-Dealer
shall pay all discounts and commissions with respect to any sale of Exchange
Notes by or on behalf of it.


    
      
         


      

      
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    Section
6. INDEMNIFICATION

     

    (a)           Each
Issuer, jointly and severally, agrees to indemnify and hold harmless each Holder
of Notes and Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, each Person, if any, who controls any such Person within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, the agents, employees, officers and directors of each Holder and each such
Participating Broker-Dealer and the agents, employees, officers and directors of
any such controlling Person (each, a “PARTICIPANT”) from and against any and all
losses, liabilities, claims, damages and expenses (including, but not limited
to, reasonable attorneys’ fees and any and all reasonable out-of-pocket expenses
actually incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in clause (c) below)) (collectively, “LOSSES”) to which they or any of
them may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Exchange Offer Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, PROVIDED, HOWEVER,
that (i) the foregoing indemnity shall not be available to any Participant
insofar as such Losses are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to such Participant furnished to the Company in writing by
or on behalf of such Participant expressly for use therein, and (ii) the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Participant from whom the Person asserting such Losses
purchased Exchange Notes if (x) it is established in the related proceeding that
such Participant failed to send or give a copy of the Prospectus (as amended or
supplemented if such amendment or supplement was furnished to such Participant
prior to the written confirmation of such sale) to such Person with or prior to
the written confirmation of such sale, if required by applicable law, and (y)
the untrue statement or omission or alleged untrue statement or omission was
corrected in the Prospectus (as amended or supplemented if amended or
supplemented as aforesaid) and such Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission that was the
subject matter of the related proceeding. This indemnity agreement will be in
addition to, but not in duplication of, any liability that the Issuers may
otherwise have to a Participant, including, but not limited to, liability under
this Agreement.


    
      
         


      

      
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    (b)           Each
Participant agrees, severally and not jointly, to indemnify and hold harmless
each Issuer, each Person, if any, who controls any Issuer within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, and each
of their respective agents, employees, officers and directors and the agents,
employees, officers and directors of any such controlling Person from and
against any Losses to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Exchange Offer
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the case of
the Prospectus, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that any
such Loss arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information relating to such Participant furnished in writing to
the Company by or on behalf of such Participant expressly for use therein. This
indemnity agreement shall be in addition to, but not in duplication of, any
liability that the Participants may otherwise have to an Issuer, including, but
not limited to, liability under this Agreement.

     

    (c)           Promptly
after receipt by an indemnified party under subsection 6(a) or 6(b) above of
notice of the commencement of any action, suit or proceeding (collectively, an
“ACTION”), such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement of
such action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have under this
Section 6 except to the extent that it has been prejudiced in any material
respect by such failure). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement of
such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of (i)
Notes with respect to which Participants experienced potential Losses and (ii)
Exchange Notes sold by all such Participants who experienced potential Losses
and shall be reasonably acceptable to the Company, and any such separate firm
for the Issuers, each control Person of the Issuers and their respective
affiliates, officers, directors, representatives, employees and agents shall be
designated in writing by the Company, and shall be reasonably acceptable to a
majority in interest of the indemnifying parties. An indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent, which consent may not be unreasonably withheld. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.


    
      
         


      

      
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    (d)           In
order to provide for contribution in circumstances in which the indemnification
provided for in this Section 6 is for any reason held to be unavailable from the
indemnifying party, or is insufficient to hold harmless a party indemnified
under this Section 6, each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such aggregate Losses
(i) in such proportion as is appropriate to reflect the relative benefits
received by each indemnifying party, on the one hand, and each indemnified
party, on the other hand, from the sale of the Notes to the Initial Purchasers
or the resale of the Exchange Notes by such Holder, as applicable, or (ii) if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of each indemnified party, on the one hand,
and each indemnifying party, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The benefits received by the Issuers shall be
deemed to be the total proceeds from the sale of the Notes to the Initial
Purchasers (net of discounts and commissions but before deducting expenses)
received by the Issuers. The relative fault of the parties 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 such Participant
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission.

     

    (e)           The
parties agree that it would not be just and equitable if contribution pursuant
to this Section 6 were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to above. Notwithstanding the provisions of this Section 6, (i) in no
case shall any Participant be required to contribute any amount in excess of the
amount by which the net proceeds received by such Participant in connection with
the sale of the Exchange Notes exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission and (ii) 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. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made against another party or parties under this Section 6, notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 6 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; PROVIDED, HOWEVER, that no additional notice shall be
required with respect to any action for which notice has been given under this
Section 6 for purposes of indemnification. Anything in this Section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any action or claim settled without its written consent; PROVIDED, HOWEVER,
that such written consent was not unreasonably withheld.


    
      
         


      

      
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    Section
7. RULES 144 AND 144A

     

    The
Issuers covenant that they will file the reports required, if any, to be filed
by them under the Securities Act and the Exchange Act in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuers are not required to file such reports, they will,
upon the request of any Holder or beneficial owner of Notes, make available such
information as required by, and so long as necessary to permit sales of the
Notes pursuant to, Rule 144A under the Securities Act. The Issuers further
covenant that for so long as any Notes remain outstanding they will take such
further action as any Holder of Notes may reasonably request from time to time
to enable such Holder to sell Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the
Commission.

     

    Section
8. MISCELLANEOUS

     

    (a)           NO
INCONSISTENT AGREEMENTS.  The
Issuers have not, as of the date hereof, and shall not, after the date of this
Agreement, enter into any agreement with respect to any of their securities that
is inconsistent with the rights granted to the Holders of Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not conflict with and are not inconsistent with, in
any material respect, the rights granted to the holders of any of the Issuers’
other issued and outstanding securities under any such agreements.

     

    (b)           AMENDMENTS
AND WAIVERS.  The
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
except pursuant to a written agreement duly signed and delivered by (i) the
Company (on behalf of all Issuers) and (ii)(A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Notes and (B) in
circumstances that would adversely affect the Participating Broker-Dealers,
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 6 and this Section 8(b) may not be amended,
modified or supplemented except pursuant to a written agreement duly signed and
delivered by the Issuers and each Holder of Notes affected by any such
amendment, modification, waiver or supplement and each Participating
Broker-Dealer (including any Person who was a Participating Broker-Dealer
holding Exchange Notes disposed of pursuant to the Exchange Offer Registration
Statement) affected by any such amendment, modification, waiver or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Participating Broker-Dealers whose Exchange Notes are being sold pursuant to the
Exchange Offer Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Notes or
Exchange Notes may be given by Participating Broker-Dealers holding at least a
majority in aggregate principal amount of the Exchange Notes being sold pursuant
to the Exchange Offer Registration Statement.


    
      
         


      

      
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    (c)           NOTICES.  All
notices and other communications (including, without limitation, any notices or
other communications to the Trustee) provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, next-day air
courier or telecopier:

     

    (i)           if
to a Holder of Notes or Exchange Notes or any Participating Broker-Dealer, at
the most current address of such person set forth on the records of the
registrar under the Indenture or the such other indenture or supplemental
indenture under which the Exchange Notes shall have been issued, as
applicable.

     

    (ii)           if
to any Issuer, to it at:

     

    c/o Alere
Inc.

    51 Sawyer
Road, Suite 200

    Waltham,
MA  02453

    Fax
Number: (781) 647-3939

    Attention:
Chief Financial Officer

     

    with a
copy to:

     

    Foley
Hoag LLP

    155
Seaport Boulevard

    Boston,
Massachusetts 02210

    Facsimile:
(617) 832-7000

    Attention:
John D. Hancock, Esq.

     

    (iii)           if
to the Initial Purchasers, at the address as follows:

     

    Jefferies
& Company, Inc.

    520
Madison Avenue

    New York,
New York 10022

    Facsimile:
(212) 284-2280

    Attention:
General Counsel

    


    All such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged
by the recipient’s telecopier machine, 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 and in the
manner specified in such Indenture.

     

    
      
        
        

      

      
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    (d)           GUARANTORS.  Until
the Notes (other than unsold allotments of the Initial Purchasers) are Freely
Transferable, the Issuers shall cause each Person that becomes a guarantor of
the Notes under the Indenture to execute and deliver a counterpart to this
Agreement which subjects such Person to the provisions of this Agreement as a
Guarantor. Each of the Guarantors agrees to join the Issuers in all of their
undertakings hereunder to effect the Exchange Offer for the Exchange
Notes.

     

    (e)           SUCCESSORS
AND ASSIGNS.  This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto, the Holders and the Participating
Broker-Dealers; 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 holds Notes.

     

    (f)           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.

     

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

     

    (h)           GOVERNING
LAW.  THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.

     

    (i)           SEVERABILITY.  If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.

     

    (j)           SECURITIES
HELD BY THE ISSUERS OR THEIR AFFILIATES.  Whenever
the consent or approval of Holders of a specified percentage of Notes is
required hereunder, Notes held by the Issuers or any of their affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be deemed
outstanding and shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    (k)           THIRD-PARTY
BENEFICIARIES.  Holders
and beneficial owners of Notes and Participating Broker-Dealers are intended
third-party beneficiaries of this Agreement, and this Agreement may be enforced
by such Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.

     

    (l)           ATTORNEYS’
FEES.  As
between the parties to this Agreement, in any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys’ fees actually incurred in addition to its reasonable costs
and expenses and any other available remedy.

     

    (m)           ENTIRE
AGREEMENT.  This
Agreement, together with the Purchase Agreement and the Indenture, is intended
by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Holders on the one hand and the Issuers
on the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in interest
with respect to the subject matter hereof and thereof are merged herein and
replaced hereby.


    
      
         


      

      
        21

        
          

        

      

      
         


      

    

    
       

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

      


      
        
          
            	
                    ALERE
      INC.

                  
	 
      	 
      
	
                    By:

                  	
                    /s/ David A. Teitel

                  
	 
      	
                    Name:  David
      A. Teitel

                  
	 
      	
                    Title:
      Chief Financial Officer

                  
	 
      	 
      
	
                    As
      Guarantors:

                  
	 
      
	
                    ALERE
      HEALTH, LLC

                  
	
                    ALERE
      HEALTHCARE OF ILLINOIS, INC.

                  
	
                    ALERE
      HEALTH IMPROVEMENT COMPANY

                  
	
                    ALERE
      HEALTH SYSTEMS, INC.

                  
	
                    ALERE
      HOME MONITORING, INC.

                  
	
                    ALERE
      INTERNATIONAL HOLDING CORP.

                  
	
                    ALERE
      MEDICAL, INC.

                  
	
                    ALERE
      NEWCO, INC.

                  
	
                    ALERE
      NEWCO II, INC.

                  
	
                    ALERE
      NORTH AMERICA, INC.

                  
	
                    ALERE
      SAN DIEGO, INC.

                  
	
                    ALERE
      SCARBOROUGH, INC.

                  
	
                    ALERE
      US HOLDINGS, LLC

                  
	
                    ALERE
      WELLOLOGY, INC.

                  
	
                    ALERE
      WOMEN’S AND CHILDREN’S HEALTH, LLC

                  
	 
      	 
      
	 
      	 
      
	
                    By:

                  	
                    /s/ David A. Teitel

                  
	 
      	
                    Name:
      David A. Teitel

                  
	 
      	
                    Title
      (respectively):  Vice President and
Treasurer;

                  
	 
      	
                    Vice
      President, Finance; Vice President,

                  
	 
      	
                    Finance;
      Vice President and Treasurer; Vice

                  
	 
      	
                    President,
      Finance; President; Vice

                  
	 
      	
                    President
      and Treasurer; President;

                  
	 
      	
                    President;
      Vice President, Finance; Vice

                  
	 
      	
                    President,
      Finance; Vice President, Finance;

                  
	 
      	
                    President;
      Vice President, Finance; Vice

                  
	 
      	
                    President,
      Finance

                  


          

        

      


      
        
           


        

        
          22

          
            

          

        

        
           


        

      

      
 

      
        
          	
                  GUARANTORS
      (continued):

                
	 
      
	
                  AMEDITECH
      INC.

                
	
                  APPLIED
      BIOTECH, INC.

                
	
                  BINAX,
      INC.

                
	
                  BIOSITE
      INCORPORATED

                
	
                  CHOLESTECH
      CORPORATION

                
	
                  FIRST
      CHECK DIAGNOSTICS CORP.

                
	
                  FIRST
      CHECK ECOM, INC.

                
	
                  FREE
      & CLEAR, INC.

                
	
                  GENECARE
      MEDICAL GENETICS CENTER, INC.

                
	
                  HEMOSENSE,
      INC.

                
	
                  INNOVACON,
      INC.

                
	
                  INSTANT
      TECHNOLOGIES, INC.

                
	
                  INVERNESS
      MEDICAL, LLC

                
	
                  INVERNESS
      MEDICAL - BIOSTAR INC.

                
	
                  IVC
      INDUSTRIES, INC.

                
	
                  MATRITECH,
      INC.

                
	
                  OSTEX
      INTERNATIONAL, INC.

                
	
                  QUALITY
      ASSURED SERVICES, INC.

                
	
                  REDWOOD
      TOXICOLOGY LABORATORY, INC.

                
	
                  RMD
      NETWORKS, INC.

                
	
                  RTL
      HOLDINGS, INC.

                
	
                  SELFCARE
      TECHNOLOGY, INC.

                
	
                  WAMPOLE
      LABORATORIES, LLC

                
	
                  ZYCARE,
      INC.

                


        

      

      


      
        
          	
                  By:

                	
                  /s/ David A. Teitel

                
	 
      	
                  Name:
      David A. Teitel

                
	 
      	
                  Title
      (respectively):  General Manager; Vice

                
	 
      	
                  President;
      Vice President, Finance; Vice

                
	 
      	
                  President,
      Finance; Vice President, Finance;

                
	 
      	
                  Vice
      President, Finance; Vice President; Vice

                
	 
      	
                  President,
      Finance; Vice President and

                
	 
      	
                  Treasurer;
      Treasurer; Vice President, Finance;

                
	 
      	
                  Vice
      President, Finance; Vice President,

                
	 
      	
                  Finance;
      Vice President, Finance; Vice

                
	 
      	
                  President;
      Vice President, Finance; Vice

                
	 
      	
                  President,
      Finance; Vice President, Finance;

                
	 
      	
                  Vice
      President, Finance; Vice President,

                
	 
      	
                  Finance
      and Treasurer; Vice President, Finance;

                
	 
      	
                  Vice
      President, Finance; Vice President; Chief

                
	 
      	
                  Financial
      Officer and Treasurer

                


        

      


      
        
           


        

        
          23

          
            

          

        

        
           


        

      

       

      
        
          
            	
                    GUARANTORS
      (continued):

                  
	 
      
	
                    ALERE
      TOXICOLOGY SERVICES, INC.

                  
	
                    LABORATORY
      SPECIALISTS OF AMERICA, INC.

                  
	
                    SCIENTIFIC
      TESTING LABORATORIES, INC.

                  
	 
      	 
      
	
                    By:

                  	
                    /s/ Ellen V. Chiniara

                  
	 
      	
                    Name:
      Ellen V. Chiniara

                  
	 
      	
                    Title
      (respectively):  Secretary;

                  
	 
      	
                    Secretary;
      Secretary

                  


          

        

      


      
        
           


        

        
          24

          
            

          

        

        
           


        

      

       

      
        
          	
                  GUARANTORS
      (continued):

                
	 
      
	
                  MATRIA
      OF NEW YORK, INC.

                
	 
      	 
      
	
                  By:

                	
                  /s/ Tom Underwood

                
	 
      	
                  Name: Tom
      Underwood

                
	 
      	
                  Title: President

                


        

      


      
        
           


        

        
          25

          
            

          

        

        
           


        

      


      Confirmed
and Accepted as of

      the date
first above written:

      


      JEFFERIES
& COMPANY, INC.

      GOLDMAN,
SACHS & CO.

      CITIGROUP
GLOBAL MARKETS INC.

      


      Acting on
behalf of themselves

      and as
the Representatives of

      the
several Initial Purchasers

      


      
        
          
            
              
                
                  
                    
                      	
                              JEFFERIES
      & COMPANY, INC.

                            
	 
      	 
      
	
                              By:

                            	/s/
      Kevin Lockhart
	 
      	
                              Name:
      Kevin Lockhart

                            
	 
      	
                              Title:
      Managing Director

                            
	 
      	 
      
	
                              GOLDMAN,
      SACHS & CO.

                            
	 
      	 
      
	
                              By:

                            	
                              /s/
      Goldman, Sachs & Co.

                            
	 
      	
                              (Goldman,
      Sachs & Co.)

                            
	 
      	 
      
	
                              CITIGROUP
      GLOBAL MARKETS INC.

                            
	 
      	 
      
	
                              By:

                            	
                              /s/
      Bernhard Sakmann

                            
	 
      	
                              Name:
      Bernhard Sakmann

                            
	 
      	
                              Title:
      VP

                            


                    

                  

                

              

            

          

        

      


      
        
           


        

        
          26