exv4w5



 



Exhibit
4.5





EXECUTION COPY




$152,000,000




DOANE PET CARE COMPANY




10 5/8% Senior Subordinated Notes Due 2015




REGISTRATION RIGHTS AGREEMENT




October 24, 2005




Lehman Brothers Inc.

Harris Nesbitt Corp.

NatCity Investments, Inc.

SunTrust Capital Markets, Inc.




	 	 	 
	c/o

	 	Lehman Brothers Inc.
	 

	 	745 Seventh Avenue
	 

	 	New York, NY 10019






Ladies and Gentlemen:




     Doane Pet Care Company, a Delaware corporation (the “Issuer”), proposes to issue and sell to
Lehman Brothers Inc., Harris Nesbitt Corp., NatCity Investments, Inc. and SunTrust Capital Markets,
Inc. (collectively, the “Initial Purchasers”), upon the terms set forth in a purchase agreement
dated as of October 14, 2005 (the “Purchase Agreement”), $152,000,000 aggregate principal amount of
its 10 5/8% Senior Subordinated Notes due 2015 (the “Initial Securities”) to be guaranteed by each
of DPC Investment Corp., a Delaware corporation, Doane Management Corp., a Delaware Corporation and
Doane/Windy Hill Joint Venture L.L.C., a Texas limited liability company, (together, the
“Guarantors” and, collectively with the Issuer, the “Company”). The Initial Securities will be
issued pursuant to an Indenture, dated as of the date hereof (the “Indenture”), among the Issuer,
the Guarantors and Wilmington Trust Company, as trustee (the “Trustee”). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers, for the benefit of the Initial Purchasers and the holders of the Securities (as defined
below) (collectively, the “Holders”), as follows:



     1. Registered Exchange Offer. Unless not permitted by applicable law (after the Company has
complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later
than 90 days (such 90th day being a “Filing Deadline”) after the date on which the Initial
Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Closing Date”),
file with the Securities and Exchange Commission (the “Commission”) a registration statement (the
“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933,
as amended (the “Securities Act”), with respect to a proposed offer (the “Exchange Offer”) to the
Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited
by any law or policy of the Commission from participating in the Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount
of debt securities of the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the “Exchange Securities”), except
that the Exchange Securities will not be subject to restrictions on transfer, any increase in
annual interest rate for failure to comply with this Agreement or additional registration rights.
The Company shall use commercially reasonable efforts to (i) cause such Exchange



 









 




Offer Registration Statement to become effective under the Securities Act within 180 days
after the Closing Date (such 180th day being an “Exchange Offer Registration Effectiveness Target
Date”) and (ii) keep the Exchange Offer Registration Statement effective for not less than 20
business days (or longer, if required by applicable law) after the date notice of the Exchange
Offer is mailed to the Holders.




     Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the
Company will use commercially reasonable efforts to issue on or prior to 210 days after the Closing
Date, Exchange Securities in exchange for all of the Initial Securities tendered prior thereto in
the Exchange Offer.



     Following the declaration of the effectiveness of the Exchange Offer Registration Statement,
the Company shall use commercially reasonable efforts to commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder of Transfer Restricted Securities electing
to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities
in the ordinary course of such Holder’s business and has no arrangements or understandings with any
person to participate in the distribution of the Exchange Securities and is not prohibited by any
law or policy of the Commission from participating in the Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of the several states of
the United States.



     The Company acknowledges that, pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market-making activities or other trading activities, for Exchange
Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information
set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange Offer Procedures”
section and the “Purpose of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of
Distribution” section of such prospectus in connection with a sale of any such Exchange Securities
received by such Exchanging Dealer pursuant to the Exchange Offer and (ii) an Initial Purchaser
that elects to sell Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment (an “Exchanging Initial Purchaser”), is required to
deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in connection with such sale. All references in this
Agreement to “prospectus” shall, except when the context otherwise requires, include any prospectus
(or amendment or supplement thereto) filed with the Commission pursuant to Section 3 of this
Agreement.



     The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained therein, in order to
permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto must be delivered by
an Exchanging Dealer or an Exchanging Initial Purchaser, such period (the “Exchange Offer
Effectiveness Period”) shall be the lesser of 180 days after the consummation of the Exchange Offer
and the date on which all Exchanging Dealers and Exchanging Initial Purchasers have sold all
Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below)
(it being understood that any such Exchanging Initial Purchaser or Exchanging Dealer shall, upon
request, promptly notify the Company whether such party has sold all Exchange Securities held by
it) and (ii) the Company shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any Exchange Securities
during the Exchange Offer Effectiveness Period.



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     If, upon consummation of the Exchange Offer, any Initial Purchaser holds Initial Securities
acquired by it as part of its initial distribution, the Company, simultaneously with the delivery
of the Exchange Securities pursuant to the Exchange Offer, shall issue and deliver to such Initial
Purchaser upon the written request of such Initial Purchaser, in exchange (the “Private Exchange”)
for the Initial Securities held by such Initial Purchaser, a like principal amount of debt
securities of the Company issued under the Indenture and identical in all material respects to the
Initial Securities (the “Private Exchange Securities”). The Initial Securities, the Exchange
Securities and the Private Exchange Securities are herein collectively called the “Securities.”



     In connection with the Exchange Offer, the Company shall:




     (a) mail 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 not less than 20 business days (or longer, if
required by applicable law) after the date notice thereof is mailed to the Holders;




     (c) utilize the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the
Trustee;




     (d) permit Holders, pursuant to the instructions in the letter of transmittal, to
withdraw tendered Securities at any time prior to 5:00 p.m., New York time, on the last
business day on which the Exchange Offer shall remain open; and




     (e) otherwise comply with all applicable laws.



     As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the
case may be, the Company shall:




     (x) accept for exchange all the Securities validly tendered and not withdrawn pursuant
to the Exchange Offer and the Private Exchange;




     (y) deliver to the Trustee for cancellation all the Initial Securities so accepted for
exchange; and




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



     The Indenture will provide that the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture (but that the Private Exchange Securities shall be) and
that all the Securities will vote and consent together on all matters as one class and that none of
the Securities will have the right to vote or consent as a class separate from one another on any
matter.



     Interest on each Exchange Security and Private Exchange Security issued pursuant to the
Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which
interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has
been paid on such Initial Securities, from the date of original issue of such Initial Securities.



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     Each Holder participating in the Exchange Offer shall be required to represent to the Company,
as a condition to such Holders’ participation in the Exchange Offer, that at the time of the
consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as
defined in Rule 405 under the Securities Act, of the Company or if it is an affiliate, such Holder
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, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other trading activities
and that it will be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Securities; and such Holder shall have made such other representations
as may be reasonably necessary under applicable Commission rules, regulations or interpretations to
render the use of Form S-4 or other appropriate form under the Securities Act available.



     Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer 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 Exchange Offer Registration Statement, and
any supplement to such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation, warranty or agreement
in this provision or elsewhere in this Agreement with respect to the Selling Holders’ Information
(as defined below), or any other written information pertaining to a Holder and furnished to the
Company by or on behalf of such Holder specifically for inclusion in any Registration Statement,
prospectus or amendment or supplement thereto.



     If following the date hereof there has been announced a change in Commission policy with
respect to exchange offers that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by applicable federal law, the
Company will seek a no-action letter or other favorable decision from the Commission allowing the
Company to consummate the Exchange Offer, unless the Company has determined, based on the advice of
counsel, that it would be futile to seek such no-action relief. The Company will pursue the
issuance of such a decision to the Commission staff level. In connection with the foregoing, the
Company will take all such other actions as may be reasonably requested by the Commission or
otherwise required in connection with the issuance of such decision, including without limitation
(i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that the Exchange Offer should be permitted and (iii) diligently
pursuing a resolution (which need not be favorable) by the Commission staff.



     2. Shelf Registration. If, (i) the Company is not required to file the Exchange Offer
Registration Statement or is not permitted to consummate the Exchange Offer, as contemplated by
Section 1 hereof, because the Exchange Offer is not permitted by applicable law or Commission
policy or (ii) any Holder of Transfer Restricted Securities notifies the Company prior to the 30th
day following the consummation of the Exchange Offer that (x) as a result of a change of law or
Commission policy since the Closing Date, it is prohibited from participating in the Exchange
Offer, or (y) it may not resell the Exchange Notes



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acquired by it in the Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder, or (z) it is a broker-dealer and owns Securities acquired directly
from the Company or an affiliate of the Company, then the Company shall take the following actions
(the date on which any of the conditions described in the foregoing clauses (i) through (ii) occur,
including in the case of subclauses (x), (y) and (z) to clause (ii), the receipt of the required
notice, being a “Trigger Date”):





     (a) The Company will use commercially reasonable efforts to file with the Commission a
registration statement (the “Shelf Registration Statement”) on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer Restricted Securities by the
Holders thereof from time to time in accordance with the methods of distribution set forth
in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the
“Shelf Registration”) on or prior to 30 days after the Trigger Date (such 30th day being a
“Filing Deadline”)) and thereafter use commercially reasonable efforts to cause the Shelf
Registration to be declared effective no later than 120 days after the Trigger Date (such
120th day being the “Shelf Registration Effectiveness Target Date”); provided,
however, that no Holder (other than an Initial Purchaser, who is already bound by
the provisions of this Agreement) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in writing to be
bound by all the provisions of this Agreement applicable to such Holder.




     (b) The Company shall use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities, until the
expiration of the period referred to in Rule 144(k) under the Securities Act (or for such
longer period if extended pursuant to Section 3(j) below) or such shorter period that will
terminate when all the Securities covered by the Shelf Registration Statement (i) have been
sold pursuant thereto, (ii) are no longer restricted securities (as defined in Rule 144
under the Securities Act, or any successor rule thereof) or (iii) cease to be outstanding.
Notwithstanding the foregoing provisions of this Section 2(b), the Company may for valid
business reasons, including without limitation, a potential financing, acquisition,
divestiture of assets or other material corporate transaction, issue a notice that the Shelf
Registration Statement is no longer effective or the prospectus included therein is no
longer usable for offers and sales of Securities and may issue any notice suspending use of
the Shelf Registration Statement required under applicable securities laws to be issued;
provided that the use of the Shelf Registration Statement shall not be suspended for more
than 60 days in the aggregate in any consecutive 12 month period. Each Holder agrees that
upon receipt of any notice from the Company pursuant to this Section 2(b), it will forthwith
discontinue use of the Shelf Registration Statement and the prospectus included therein
until receipt of copies of the supplemented or amended prospectus relating thereto or until
advised in writing by the Company that the use of the Shelf Registration Statement and the
related prospectus may be resumed.




     (c) Notwithstanding any other provisions of this Agreement to the contrary, the Company
shall cause the Shelf Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration Statement, amendment
or supplement, (i) to comply in all material respects with the applicable requirements of
the Securities Act and the rules and regulations of the Commission and (ii) not to contain
any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that no representation, warranty or agreement is made as to information contained in or
omitted from the Shelf Registration Statement, the related prospectus or any amendment or
supplement thereto in reliance upon and in conformity with



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written information furnished to the Company by a selling Holder thereunder
specifically for inclusion therein (the “Selling Holders’ Information”).



     3. Registration Procedures. In connection with any Shelf Registration contemplated by Section
2 hereof and, to the extent applicable, any Exchange Offer contemplated by Section 1 hereof, the
following provisions shall apply:




     (a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each amendment thereof
and each supplement, if any, to the prospectus included therein and, in the event that an
Exchanging Initial Purchaser is participating in the Exchange Offer (to the extent permitted
by applicable interpretations by the staff of the Commission) or the Shelf Registration
Statement, the Company shall use commercially reasonable efforts to reflect in each such
document, when so filed with the Commission, such comments as such Exchanging Initial
Purchaser reasonably and timely may propose; (ii) include the information set forth in Annex
A hereto on the cover, in Annex B hereto in the sections in which the procedures and
purposes of the Exchange Offer are described and in Annex C hereto in the “Plan of
Distribution” section of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Exchange Offer; (iii) if requested by an Exchanging
Initial Purchaser that is participating in the Exchange Offer (to the extent permitted by
applicable interpretations by the staff of the Commission ), include the information
required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Exchange Offer Registration Statement; (iv) include
within the prospectus contained in the Exchange Offer Registration Statement a section
entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which
shall contain a summary statement of the positions taken or policies made by the staff of
the Commission with respect to the potential “underwriter” status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) of Exchange Securities received by such broker-dealer in
the Exchange Offer, whether such positions or policies have been publicly disseminated by
the staff of the Commission or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house counsel), represent
the prevailing views of the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling securityholders.




     (b) The Company shall give written notice to the Initial Purchasers, the Holders of the
Securities who are selling securityholders under the Shelf Registration Statement and any
Exchanging Dealer from whom the Company has received prior written notice that it will be an
Exchanging Dealer in the Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):




     (i) when the Registration Statement or any amendment thereto or any amendment
or supplement to the related prospectus has been filed with the Commission and when
the Registration Statement or any post-effective amendment thereto has become
effective;




     (ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for additional
information;



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     (iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose;




     (iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and




     (v) of the happening of any event that requires the Company to make changes in
the Registration Statement or the prospectus in order that the Registration
Statement and the prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus, in light of the circumstances
under which they were made) not misleading.




     (c) The Company shall make every reasonable effort to obtain the withdrawal at the
earliest possible time of any order suspending the effectiveness of the Registration
Statement.




     (d) The Company shall furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the Shelf Registration
Statement and any post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).




     (e) The Company shall deliver to each known Exchanging Dealer and each known Exchanging
Initial Purchaser, and to any other Holder who so requests in writing, without charge, at
least one copy of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if any such Exchanging Dealer,
Exchanging Initial Purchaser or Holder requests in writing, all exhibits thereto (including
those incorporated by reference).




     (f) The Company shall, during the Shelf Registration Period, deliver to each Holder of
Securities included within the coverage of the Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person may reasonably
request in order to facilitate the public sale or other disposition of Securities
thereunder. The Company consents, subject to the provisions of this Agreement, to the use
of the prospectus or any amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf Registration
Statement.




     (g) The Company shall deliver to each Exchanging Initial Purchaser, any Exchanging
Dealer and such other persons required to deliver a prospectus following the Exchange Offer,
without charge, as many copies of the final prospectus included in the Exchange Offer
Registration Statement and any amendment or supplement thereto as such persons may
reasonably request in order to facilitate the public sale or other disposition of Securities
thereunder. The Company consents, subject to the provisions of this Agreement, to the use
of the prospectus or any amendment or supplement thereto by any such Exchanging Initial
Purchaser, Exchanging Dealer and such other persons required to deliver a prospectus
following the Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by



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the prospectus, or any amendment or supplement thereto, included in such Exchange Offer
Registration Statement.




     (h) Prior to any public offering of the Securities pursuant to any Registration
Statement the Company shall use commercially reasonable efforts to register or qualify or
cooperate with the Holders of the Securities included therein and their respective counsel
in connection with the registration or qualification of the Securities for offer and sale
under the securities or “blue sky” laws of such states of the United States as any Holder of
the Securities reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the Securities
covered by such Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified or (ii) take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is not then so subject.




     (i) The Company shall cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the Securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in such
denominations (consistent with the provisions of the Indenture) and registered in such names
as the Holders may request a reasonable period of time prior to sales of the Securities
pursuant to such Registration Statement.




     (j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare and file any requisite
post-effective amendment to the Registration Statement or any requisite supplement to the
related prospectus and any other required document so that, as thereafter delivered to
Holders of the Securities or purchasers of Securities, the prospectus will not contain an
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 light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial Purchasers, the
Holders of the Securities who are selling securityholders under the Shelf Registration
Statement and any known Exchanging Dealer in accordance with paragraphs (ii) through (v) of
Section 3(b) above to suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then such Initial Purchasers, the Holders of the Securities and
Exchanging Dealers shall forthwith suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in Section 2(b) above and the
Exchange Offer Registration Statement provided for in Section 1 above shall each be extended
by the number of days from and including the date of the giving of such notice to and
including the earlier of the date when such Initial Purchasers, the Holders of the
Securities and Exchanging Dealers shall have received such amended or supplemented
prospectus pursuant to this Section 3(j) or the date when advised in writing by the Company
that the use of the prospectus may be resumed.




     (k) Not later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, in a form eligible for deposit with The Depository
Trust Company.




     (l) The Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Exchange Offer or the Shelf Registration
and will make generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the
provisions of



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Section 11(a) of the Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first month of the
Company’s first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.




     (m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended, in a timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.




     (n) The Company may require each Holder of Securities to be sold pursuant to the Shelf
Registration Statement (as a condition to such Holder’s participation in the Shelf
Registration) to furnish to the Company such information regarding the Holder and the
distribution of the Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.




     (o) The Company shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other customary action, if any,
as any Holder of the Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.




     (p) In the case of any Shelf Registration, the Company shall (i) make reasonably
available for inspection by the Holders of any Securities covered thereby, any underwriter
participating in any disposition pursuant to the Shelf Registration Statement, any attorney,
accountant or other agent retained by such Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of the Company;
and (ii) cause the Company’s officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by such Holders, any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of parties described above in this paragraph, by one counsel
designated by and on behalf of such parties.




     (q) In the case of any Shelf Registration, the Company, if requested by any Holder of
Securities covered thereby, shall cause (i) its counsel to deliver an opinion and updates
thereof relating to the Securities in customary form addressed to such Holders and the
managing underwriters, if any, thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement which opinion, in form, scope and
substance, shall be reasonably satisfactory to the Holders and each such underwriter and
shall cover the matters customarily covered in opinions requested in underwritten
offerings); (ii) its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the applicable Securities
and (iii) its independent public accountants to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in connection with
primary underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.



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     (r) In the case of the Exchange Offer, if requested by any Exchanging Initial Purchaser
or Exchanging Dealer, the Company shall cause (i) its counsel to deliver to such Exchanging
Initial Purchaser or Exchanging Dealer a signed opinion in the form set forth in Sections
7(c) and 7(d) of the Purchase Agreement with such changes as are customary in connection
with the preparation of a Registration Statement and (ii) its independent public accountants
to deliver to such Exchanging Initial Purchaser or Exchanging Dealer a comfort letter, in
customary form, meeting the requirements as to the substance thereof as set forth in Section
7(f) of the Purchase Agreement, with appropriate date changes.




     (s) If a Exchange Offer or a Private Exchange is to be consummated, upon delivery of
the Initial Securities by Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Company shall mark, or caused to be marked, on the Initial Securities so
exchanged that such Initial Securities are being canceled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event shall such
exchanged Initial Securities be marked as paid or otherwise satisfied due to such exchange.




     (t) The Company will use commercially reasonable efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial Securities, confirm
such ratings will apply to the Securities covered by a Registration Statement, or (b) if the
Initial Securities were not previously rated, cause the Securities covered by a Registration
Statement to be rated with the appropriate rating agencies, if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such Registration Statement,
or by the managing underwriters, if any.




     (u) In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting syndicate or selling
group or “assist in the distribution” (within the meaning of the Conduct Rules (the “Rules”)
of the National Association of Securities Dealers, Inc.) thereof, whether as a Holder of
such Securities or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i) if such Rules,
including Rule 2720, shall so require, engaging a “qualified independent underwriter” (as
defined in Rule 2720) to participate in the preparation of the Registration Statement
relating to such Securities, to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof and (iii)
providing such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.




     (v) The Company shall use commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration Statement
contemplated hereby.




4. Registration Expenses. (a) All expenses incident to the Company’s performance of
and compliance with this Agreement will be borne by the Company, regardless of whether a
Registration Statement is ever filed or becomes effective, including without limitation:




     (i) all registration and filing fees and expenses;



10









 






     (ii) all fees and expenses of compliance with federal securities and state
“blue sky” or securities laws;




     (iii) all expenses of printing (including printing certificates for the
Securities to be issued in the Exchange Offer and the Private Exchange and printing
of prospectuses), messenger and delivery services and telephone;




     (iv) all fees and disbursements of counsel for the Company;




     (v) all application and filing fees in connection with any listing of the
Exchange Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and




     (vi) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).


The Company will bear its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties), the expenses of any
annual audit and the fees and expenses of any person, including special experts, retained by the
Company. For the avoidance of doubt, the Company shall not bear any liability for underwriting
discounts and commissions or transfer taxes, if any, relating to the sale or disposition by any
Holder of any Securities pursuant to a Registration Statement.





5. Indemnification. (a) The Issuer and each of the Guarantors (collectively, the
“Indemnifying Parties”), jointly and severally, agree to indemnify and hold harmless each
Holder of the Securities and any Exchanging Dealer and each person, if any, who controls
such Holder or such Exchanging Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Exchanging Dealer and such controlling persons are referred
to collectively as the “Indemnified Parties”) from and against any losses, claims, damages
or liabilities, joint or several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, liabilities or actions relating to purchases and
sales of the Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Indemnifying Parties shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or alleged omission
made in a Registration Statement or prospectus or in any amendment or supplement thereto or
in any preliminary prospectus relating to a Shelf Registration in reliance upon and in
conformity with Selling Holders’ Information or other written information pertaining to an
Indemnified Party and furnished to the Company by or on behalf of such Indemnified Party,
respectively, specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any preliminary or
final prospectus relating to a Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Indemnified Party from whom



11









 






the person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such Securities was
required to be delivered by such Indemnified Party under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of such Indemnified Party
results from the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Securities to such person, a copy of the final
prospectus, as then amended or supplemented, if the Company had previously furnished copies
thereof to such Indemnified Party; provided further, however, that
this indemnity agreement will be in addition to any liability which the Indemnifying Parties
may otherwise have to such Indemnified Party. The Indemnifying Parties shall also indemnify
underwriters, their officers and directors and each person who controls such underwriters
within the meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the Securities if requested by
such Holders.




     (b) Each Exchanging Dealer and each Holder of the Securities, severally and not
jointly, will indemnify and hold harmless the Issuer and the Guarantors and each person, if
any, who controls the Issuer or any of the Guarantors within the meaning of the Securities
Act or the Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Issuer or any Guarantor or any such controlling
person may become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and in conformity
with Selling Holders’ Information or other written information pertaining to such Exchanging
Dealer or Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Issuer and the Guarantors for any legal or other
expenses reasonably incurred by the Issuer or any Guarantor or any such controlling person
in connection with investigating or defending any loss, claim, damage, liability or action
in respect thereof. This indemnity agreement will be in addition to any liability which
such Exchanging Dealer or Holder may otherwise have to the Issuer and the Guarantors or any
of their controlling persons.




     (c) Promptly after receipt by an indemnified party under this Section 5 of notice of
the commencement of any action or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party under this
Section 5 except to the extent that the indemnifying party has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and the failure
to notify the indemnifying party shall not relieve it from any liability that it may have to
an indemnified party other than the indemnification obligation provided in paragraph (a) or
(b) above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it wishes, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except with the consent of
the indemnified party, be counsel to the indemnifying party), and after notice from the
indemnifying



12









 






party to such indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this Section 5 for any
legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof. In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed in writing to the contrary; (ii) the indemnifying party has failed
within a reasonable time after notice by the indemnified party to the indemnifying party of
the proceeding to retain counsel reasonably satisfactory to the indemnified party; (iii) the
indemnified party shall have reasonably concluded that there may be legal defenses available
to it that are different from or in addition to those available to the indemnifying party;
or (iv) the named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the indemnified party shall have
reasonably concluded that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood
and agreed that the indemnifying party shall not, in connection with any proceeding or
related proceedings, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for any Holder or
Exchanging Dealer or any control persons of any Holder or Exchanging Dealer shall be
designated in writing by such Holder or Exchanging Dealer and any such separate firm for the
Company, the Guarantors and any control persons of the Company or any Guarantor shall be
designated by the Company. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could reasonably have been expected to be named
as a party and such indemnified party would have been entitled to indemnity hereunder unless
such settlement includes (i) an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, 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 the indemnification provided for in this Section 5 is unavailable or
insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other, or (ii) if the allocation provided by the
foregoing clause (i) 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 the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable considerations. 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 indemnifying party
or parties on the one hand or the indemnified party or parties, on the other, and the
respective parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding any other provision
of this Section 5(d), the Holders of the Securities shall not be required to



13









 






contribute any amount in excess of the amount by which the net proceeds received by
such Holders from the sale of the Securities or pursuant to a Registration Statement exceeds
the amount of damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who controls
such indemnified party within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.




     (e) The agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.




6. Additional Interest Under Certain Circumstances. (a) Additional interest (the
“Additional Interest”) with respect to the Securities shall be assessed as follows if any of
the following events occur (each such event in clauses (i) through (iv) below being herein
called a “Registration Default”):




     (i) the Company fails to file any Registration Statement required by this
Agreement on or prior to the applicable Filing Deadline;




     (ii) the Exchange Offer Registration Statement is not declared effective by the
Commission on or prior to the Exchange Offer Registration Effectiveness Target Date
or the Shelf Registration Statement is not declared effective by the Commission on
or prior to the Shelf Registration Effectiveness Target Date, as applicable;




     (iii) the Company fails to consummate the Exchange Offer within 30 days of the
Exchange Offer Registration Effectiveness Target Date or the Shelf Registration
Effectiveness Target Date, as applicable; or




     (iv) any Registration Statement required by this Agreement has been declared
effective by the Commission but (A) such Registration Statement thereafter ceases to
be effective during the periods specified herein during which it is required to be
effective or (B) such Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted Securities during the
periods specified herein because either (1) any event occurs as a result of which
the related prospectus forming part of such Registration Statement would include any
untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they were
made not misleading, or (2) it shall be necessary to amend such Registration
Statement or supplement the related prospectus, to comply with the Securities Act or
the Exchange Act or the respective rules thereunder and such failure to remain
effective or useable exists for more than 30 days in any 12-month period.


Each of the foregoing will constitute a Registration Default whatever the reason for any such event
and whether it is voluntary or involuntary or is beyond the control of the Company or pursuant to
operation of law or as a result of any action or inaction by the Commission.




14









 








     Additional Interest shall accrue on the Securities over and above the interest set forth in
the title of the Securities from and including the date on which any such Registration Default
shall occur to but excluding the date on which all such Registration Defaults have been cured, in
an amount equal to $0.05 per week per $1,000 principal amount of Securities (the “Additional
Interest”) for the first 90-day period immediately following the occurrence of such Registration
Default. The amount of Additional Interest shall increase by an additional $0.05 per week per
$1,000 principal amount of Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Additional Interest for all
Registration Defaults of $0.20 per week per $1,000 principal amount of the Securities.




     (b) A Registration Default referred to in Section 6(a)(iv) hereof shall be deemed not
to have occurred and be continuing in relation to a Shelf Registration Statement or, if
required to be kept effective after consummation of the Exchange Offer, the Exchange Offer
Registration Statement or the related prospectus if (i) such Registration Default has
occurred solely as a result of (x) the filing of a post-effective amendment to such
Registration Statement to incorporate annual audited financial information with respect to
the Company where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus or (y) other material
events, with respect to the Company that would need to be described in such Registration
Statement or the related prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such Shelf Registration
Statement and related prospectus to describe such events or to otherwise cause such
Registration Statement and related prospectus to again be usable; provided,
however, that in any case if such Registration Default occurs for a continuous
period in excess of 30 days, Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default occurs until such Registration
Default is cured.




     (c) Any amounts of Additional Interest due pursuant to Section 6(a) will be payable in
cash on the regular interest payment dates with respect to the Securities as set forth in
the Indenture and the Securities.




     (d) “Transfer Restricted Securities” means each Security until the earliest to occur of
(i) the date on which such Security has been exchanged by a person other than a
broker-dealer for an Exchange Security in the Exchange Offer and is entitled to be resold to
the public by such person without complying with the prospectus delivery requirements of the
Securities Act, (ii) following the exchange by a broker-dealer in the Exchange Offer of an
Initial Security for an Exchange Security, the date on which such Exchange Security is sold
to a purchaser who receives from such broker-dealer on or prior to the date of such sale a
copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement, (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act or (v) the date on which such
Security has ceased to be outstanding.



     7. Rules 144 and 144A. The Company shall use its commercially reasonable efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will, upon the written
request of any Holder of Securities (a) make publicly available such information as is necessary to
permit sales of their Securities pursuant to Rule 144 and (b) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A. The Company covenants
that it will take such further action as any Holder of Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Securities without registration
under the Securities Act within the limitation of



15









 




the exemptions provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Company will provide a copy of this Agreement to prospective purchasers of Initial Securities
identified to the Company by the Initial Purchasers upon request. Upon the written request of any
Holder of Initial Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 8 shall be deemed to require the Company to register any of its securities pursuant to the
Exchange Act.




     8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of such Transfer Restricted Securities to be included
in such offering.



     No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements.



     9. Miscellaneous.




     (a) Remedies. The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 1 and 2 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 will 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 Sections 1
and 2 hereof. The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.




     (b) No Inconsistent Agreements. The Company will not on or after the date of this
Agreement enter into any agreement with respect to its securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the Company’s
securities under any agreement in effect on the date hereof.




     (c) 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 in writing by the Company and by the written consent of the Holders
of a majority in principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consents.




     (d) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, first-class mail, facsimile transmission, or air
courier which guarantees overnight delivery:




     (1) if to a Holder of the Securities, at the most current address given by such
Holder in writing to the Company.




     (2) if to the Initial Purchasers:



16









 





	 	 	 	 	 
	 

	 	 	 	Lehman Brothers Inc.
	 

	 	 	 	745 Seventh Avenue
	 

	 	 	 	New York, NY 10019
	 

	 	 	 	Fax No.: (646) 834-8133
	 

	 	 	 	Attention: Syndicate Department
	 
	 	 	 	 
	 

	 	with a copy to:	 	 
	 
	 	 	 	 
	 

	 	 	 	Milbank, Tweed, Hadley & McCloy llp
	 

	 	 	 	1 Chase Manhattan Plaza
	 

	 	 	 	New York, NY 10005
	 

	 	 	 	Attention: Arnold B. Peinado, III
	 
	 	 	 	 
	 

	 	(3) if to the
Company, at its
address as follows:
	 
	 	 	 	 
	 

	 	 	 	Doane Pet Care Company
	 

	 	 	 	210 Westwood Place South
	 

	 	 	 	Suite 400
	 

	 	 	 	Brentwood, Tennessee 37027
	 

	 	 	 	Fax No.: (615) 309-1189
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	with a copy to:	 	 
	 
	 	 	 	 
	 

	 	 	 	Vinson & Elkins
	 

	 	 	 	666 Fifth Avenue, 26th Floor
	 

	 	 	 	New York, New York 10103
	 

	 	 	 	Attention: Alan Baden






     All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile machine operator,
if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.




     (e) Third Party Beneficiaries. The Holders shall be third party beneficiaries 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 they may deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.




     (f) Successors and Assigns. This Agreement shall be binding upon the Company and its
successors and assigns.




     (g) Future Subsidiary Guarantors. If, prior to the consummation of the Exchange Offer
or prior to the effectiveness of the Shelf Registration Statement, as the case may be, any
subsidiary of the Company executes a subsidiary guarantee in accordance with the terms and
provisions of the Indenture, the Company shall cause such subsidiary to execute and deliver
to the



17









 






parties hereto a counterpart signature page to this Agreement and such subsidiary shall
be bound by all provisions of this Agreement as a “Guarantor.”




     (h) 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.




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




     (j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.




     (k) Severability. If 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.




     (l) Securities Held by the Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder, Securities
held by the Company or its affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.




     (m) Entire Agreement. This Agreement, including the Annexes hereto, the Purchase
Agreement, the Indenture, the Offered Securities, the Subsidiary Guarantees, the Exchange
Securities and the Exchange Security Guarantees (as such terms are defined in the Purchase
Agreement), constitute the entire agreement among the parties pertaining to the subject
matter hereof and supercede all other prior and contemporaneous agreements and
understandings, both oral and written, of the parties in connection therewith.



     If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the several Initial Purchasers, the Issuer and the Guarantors
in accordance with its terms.



18









 





	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 	 	 
	 	 	Doane Pet Care Company
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	Name:

	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Doane Management Corp.	 	 
	 	 	DPC Investment Corp.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	Name:

	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Doane/Windy Hill Joint Venture L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By: Doane Pet Care Company, its sole member	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






 









 






The foregoing Registration

Rights Agreement is hereby agreed

and accepted as of the date first

above written.




Lehman Brothers Inc.

Harris Nesbitt Corp.

NatCity Investments, Inc.

SunTrust Capital Markets, Inc.




By: Lehman Brothers Inc.




	 	 	 	 	 
	by
	 	 	 	 
	 

	 	Name:

	 	 
	 

	 	Title:	 	 






 









 






ANNEX A




     Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading activities. The Company has
agreed that, for a period of up to 180 days after the Expiration Date (as defined herein), it will
make this Prospectus available to any broker-dealer for use in connection with any such resale.
See “Plan of Distribution.”



21









 





ANNEX B




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



22









 





ANNEX C




PLAN OF DISTRIBUTION




     Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. This prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed that, for a period of
up to 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In addition, until          , 200___, all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.(1)



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



     For a period of up to 180 days after the Expiration Date the Company will promptly send
additional copies of this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to
pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers or dealers and will
indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.





 




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




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ANNEX D



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




	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 

	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 

	 	 





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





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