EX-4.2



 






Exhibit 4.2





 




REGISTRATION RIGHTS AGREEMENT




Dated As of July 21, 2005




among




Mylan Laboratories Inc.




and




The Guarantors Party Hereto




and




Merrill Lynch, Pierce, Fenner & Smith Incorporated,




BNY Capital Markets, Inc.,




KeyBanc Capital Markets, a Division of McDonald Investments Inc.,




PNC Capital Markets, Inc.




and




Sun Trust Capital Markets, Inc.





 





 









 








REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this 21
day of July, 2005, among Mylan Laboratories Inc., a Pennsylvania corporation (the
“Company”), each of the subsidiaries of the Company listed on the signature page hereto
(the “Guarantors” and, together with the Company, the “Issuers”) and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, BNY Capital Markets, Inc., KeyBanc Capital Markets, a Division
of McDonald Investments Inc., PNC Capital Markets, Inc. and Sun Trust Capital Markets, Inc.
(collectively, the “Initial Purchasers”).




          This Agreement is made pursuant to the Purchase Agreement, dated July 14, 2005, among the
Issuers and the Initial Purchasers (the “Purchase Agreement”), which provides for the sale
by the Company to the Initial Purchasers of an aggregate of $500,000,000 principal amount of the
Company’s 5.750% Senior Notes due 2010 (the “2010 Notes”) and 6.375% Senior Notes due 2015
(the “2015 Notes” and together with the 2010 Notes, the “Notes”) as described in
the Purchase Agreement. The Notes are to be unconditionally guaranteed by the Guarantors on a
senior unsecured basis (the “Guarantees” and, together with the Notes, the
“Securities”). In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.




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




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




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




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




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




          “Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.




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




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




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




 









 








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




          “Exchange Period” shall have the meaning set forth in Section 2.1 hereof.




          “Exchange Securities” shall mean the 5.750% Senior Notes due 2010 and the 6.375%
Senior Notes due 2015 issued by the Company under the Indenture, together with unconditional
guarantees thereof by each of the Guarantors, each containing terms identical to the Securities in
all material respects (except that (i) interest thereon shall accrue from the last date on which
interest was paid on the Securities, or if no such interest has been paid, from July 21, 2005, and
(ii) the additional interest rate, restrictions on transfers and restrictive legends provisions
thereon shall be eliminated), to be offered to Holders of Securities in exchange for Registrable
Securities pursuant to the Exchange Offer.




          “Guarantees” shall have the meaning set forth in the preamble.




          “Guarantors” shall have the meaning set forth in the preamble and shall also include
their respective successors.




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




          “Indenture” shall mean the Indenture relating to the Securities, dated as of July 21,
2005, between the Issuers and The Bank of New York, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with the terms thereof.




          “Initial Purchaser” or “Initial Purchasers” shall have the meaning set forth
in the preamble.




          “Issuers” shall have the meaning set forth in the preamble and shall also include
their respective successors.




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




          “Notes” shall have the meaning set forth in the preamble.




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          “Participating Broker-Dealer” shall mean any of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, BNY Capital Markets, Inc., KeyBanc Capital Markets, a Division of McDonald
Investments Inc., PNC Capital Markets, Inc. and Sun Trust Capital Markets, Inc. and any other
broker-dealer which makes a market in the Securities and exchanges Registrable Securities in the
Exchange Offer for Exchange Securities.




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




          “Private Exchange” shall have the meaning set forth in Section 2.1 hereof.




          “Private Exchange Securities” shall have the meaning set forth in Section 2.1 hereof.




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




          “Purchase Agreement” shall have the meaning set forth in the preamble.




          “Registrable Securities” shall mean the Securities and, if issued, the Private
Exchange Securities; provided, however, that Securities and, if issued, the Private Exchange
Securities, shall cease to be Registrable Securities when (i) a Registration Statement with respect
to such Securities or Private Exchange Securities shall have been declared effective under the 1933
Act and such Securities or Private Exchange Securities shall have been disposed of pursuant to such
Registration Statement, (ii) such Securities or Private Exchange Securities have been sold to the
public pursuant to Rule l44 or shall have become eligible to be sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities or Private Exchange Securities shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Private Exchange Securities and Securities purchased
from the Company and continued to be held by the Initial Purchasers).




          “Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the “NASD”) registration and
filing fees, including, if applicable, the reasonable fees and expenses of any “qualified
independent underwriter” (and its counsel) that is required to be retained by any holder of
Registrable Securities in accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and distributing any
Registration




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Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of and compliance with
this Agreement, (iv) all fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities on any securities exchange or exchanges, (v) all rating agency fees,
(vi) the fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or “cold comfort” letters
required by or incident to such performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (viii) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable fees and expenses of
counsel to the Initial Purchasers in connection therewith, (ix) in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of special counsel representing the Holders of
Registrable Securities and (x) any fees and disbursements of the underwriters customarily required
to be paid by issuers or sellers of securities and the reasonable fees and expenses of any special
experts retained by the Company in connection with any Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.




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




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




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




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




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




          2. Registration Under the 1933 Act.




          2.1 Exchange Offer. The Company shall, for the benefit of the Holders, at the
Company’s cost use its reasonable best efforts to, (A) prepare and, as soon as practicable but not
later than 120 days following the Closing Date, file with the SEC an Exchange Offer Registration
Statement on an appropriate form under the 1933 Act with respect to a proposed Exchange Offer and
the issuance and delivery to the Holders, in exchange for the Registrable Securities




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(other than Private Exchange Securities), of a like principal amount of Exchange Securities
that are securities of the applicable series, (B) cause the Exchange Offer Registration Statement
to be declared effective under the 1933 Act within 210 days of the Closing Date, (C) keep the
Exchange Offer Registration Statement effective until the closing of the Exchange Offer and (D)
cause the Exchange Offer to be consummated not later than 240 days following the Closing Date. The
Exchange Offer Registration Statement may be used by the Company in connection with a proposed
exchange offer with respect to any Exchange Notes (as defined in the Indenture). The Exchange
Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall as promptly as practicable commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and electing to
exchange Registrable Securities for Exchange Securities (assuming that such Holder (a) is not an
affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (b) is not a
broker-dealer tendering Registrable Securities acquired directly from the Company for its own
account, (c) acquired the Exchange Securities in the ordinary course of such Holder’s business and
(d) has no arrangements or understandings with any Person to participate in the Exchange Offer for
the purpose of distributing the Exchange Securities) to transfer such Exchange Securities from and
after their receipt without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws.




          In connection with the Exchange Offer, the Issuers shall:





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




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




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




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




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




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



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          If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities
acquired by them and having the status of an unsold allotment in the initial distribution, the
Issuers upon the written request of any Initial Purchaser shall, simultaneously with the delivery
of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in
exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a like
principal amount of debt securities that are identical to the Exchange Securities, except that such
securities shall bear appropriate transfer restrictions (the “Private Exchange
Securities”).




          The Exchange Securities and the Private Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as amended (the
“TIA”), or is exempt from such qualification and shall provide that the Exchange Securities
shall not be subject to the transfer restrictions set forth in the Indenture but that the Private
Exchange Securities shall be subject to such transfer restrictions. The Indenture or such
indenture shall provide that the Exchange Securities, the Private Exchange Securities and the
Securities shall vote and consent together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote
or consent as a separate class on any matter. The Private Exchange Securities shall be of the same
series as and the Issuers shall use all commercially reasonable efforts to have the Private
Exchange Securities bear the same CUSIP number as the Exchange Securities. The Issuers shall not
have any liability under this Agreement solely as a result of such Private Exchange Securities not
bearing the same CUSIP number as the Exchange Securities.




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





     (i) accept for exchange all Registrable Securities duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement;




     (ii) accept for exchange all Securities properly tendered pursuant to the Private
Exchange;




     (iii) deliver to the Trustee for cancellation all Registrable Securities so accepted
for exchange; and




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



          Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in exchange therefor or,
if no interest has been paid on the Registrable Securities, from the date of original issuance.
The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i)
that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the staff




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of the SEC, (ii) the due tendering of Registrable Securities in accordance with the Exchange
Offer and the Private Exchange, (iii) that each Holder of Registrable Securities exchanged in the
Exchange Offer shall have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the consummation of the
Exchange Offer it shall have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the 1933 Act) of the Exchange Securities and shall have made
such other representations as may be reasonably necessary under applicable SEC rules, regulations
or interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of
the Company to proceed with the Exchange Offer or the Private Exchange. Upon the written request
of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have
the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.




          2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any other
reason the Exchange Offer Registration Statement is not declared effective within 210 days
following the original issue of the Registrable Securities or the Exchange Offer is not consummated
within 240 days after the original issue of the Registrable Securities, (iii) upon the written
request of any of the Initial Purchasers with respect to Registrable Securities held by such
Initial Purchasers that were acquired by such Initial Purchasers directly from the Company or (iv)
if a Holder is not permitted to participate in the Exchange Offer or does not receive fully
tradeable Exchange Securities pursuant to the Exchange Offer, then in case of each of clauses (i)
through (iv) the Issuers shall, at their cost:





     (a) Use their reasonable best efforts, prior to the later of (x) 120 days after the
Issue Date or (y) 30 days after such filing obligation arises, file with the SEC, and
thereafter shall use their reasonable best efforts to cause to be declared effective as
promptly as practicable but no later than 180 days after such filing obligation arises, a
Shelf Registration Statement relating to the offer and sale of the Registrable Securities by
the Holders from time to time in accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set forth in such Shelf
Registration Statement.




     (b) Use their reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof to be usable
by Holders for a period of two years from the date the Shelf Registration Statement is
declared effective by the SEC, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the “Effectiveness Period”); provided, however, that the
Effectiveness Period in respect of the Shelf Registration Statement shall be extended to the
extent required to



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permit dealers to comply with the applicable prospectus delivery requirements of Rule
174 under the 1933 Act and as otherwise provided herein.




     (c) Notwithstanding any other provisions hereof, use their best efforts to ensure that
(i) any Shelf Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to Issuers by or on
behalf of any Holder specifically for use therein (the “Holders’ Information”)) does not,
when it becomes effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from time to time), and in
each case, other than with respect to Holder’s Information that the Issuer does not know to
be false, does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of the circumstances under
which they were made, not misleading.



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




          2.3 Expenses. The Issuers shall pay all Registration Expenses in connection with the
registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration Statement.




          2.4 Effectiveness. (a) The Issuers will be deemed not have used their reasonable
best efforts to cause the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain, effective during the requisite period if
any Issuer voluntarily takes any action that would, or omits to take any action which omission
would, result in any such Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period as and to the extent contemplated hereby, unless (i) such
action is required by applicable law, or (ii) such action is taken by the Issuers in good faith and
for valid business reasons (not including avoidance of the Issuers’ obligations hereunder),
including, but not limited to, the acquisition or divestiture of assets, so long as the Issuers
promptly thereafter comply with the requirements of Section 3(k) hereof, if applicable.




          (b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant
to an Exchange Offer




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Registration Statement or a Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective during the period of
such interference, until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume.




          2.5 Interest. The Indenture executed in connection with the Securities will provide
that in the event that either (a) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 120th calendar day following the date of original issue of the
Securities, (b) the Exchange Offer Registration Statement has not been declared effective on or
prior to the 210th calendar day following the date of original issue of the Securities, (c) the
Exchange Offer is not consummated on or prior to the 240th calendar day following the date of
original issue of the Securities or (d) if obligated to file a Shelf Registration Statement, such
Shelf Registration Statement is not filed or does not become effective on or prior to the date
specified in Section 2.2(a) (each such event referred to in clauses (a) through (d) above, a
“Registration Default”), the interest rate borne by the Registrable Securities shall be
increased (“Additional Interest”) by one-quarter of one percent per annum upon the
occurrence of each Registration Default, which rate will increase by one quarter of one percent
each 90-day period that such Additional Interest continues to accrue under any such circumstance,
provided that the maximum aggregate increase in the interest rate will in no event exceed one
percent (1%) per annum. Following the earlier of (i) the cure of all Registration Defaults or (ii)
the date on which the Securities cease to be Registrable Securities, the accrual of Additional
Interest will cease and the interest rate will revert to the original rate.




          If the Shelf Registration Statement is unusable by the Holders for any reason, and the
aggregate number of days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the interest rate borne by the
Securities will be increased by 0.25% per annum of the principal amount of the Securities for the
first 90-day period (or portion thereof) beginning on the 31st such date that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an additional 0.25%
per annum of the principal amount of the Securities at the beginning of each subsequent 90-day
period, provided that the maximum aggregate increase in the interest rate will in no event exceed
one percent (1%) per annum. Any amounts payable under this paragraph shall also be deemed
“Additional Interest” for purposes of this Agreement. Upon the earlier of (i) the Shelf
Registration Statement once again becoming usable or (ii) the expiration of the time period
referred to in Rule 144(k) under the 1933 Act, the interest rate borne by the Securities will be
reduced to the original interest rate if no Registration Defaults exist at such time. Additional
Interest shall be computed based on the actual number of days elapsed in each 90-day period in
which the Shelf Registration Statement is unusable.




          The Company shall notify the Trustee within three business days after each and every date on
which an event occurs in respect of which Additional Interest is required to be paid (an “Event
Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Registrable Securities, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the Additional Interest then
due. The Additional Interest due shall be payable on each interest payment date to the re-




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cord Holder of Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.




          3. Registration Procedures. In connection with the obligations of the Issuers with
respect to Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Issuers shall:





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




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




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



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     (d) use their reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or “blue sky” laws of such jurisdictions as any Holder
of Registrable Securities covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and do any and all other
acts and things which may be reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that no Issuer shall be required to (i)
qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it
is not then so qualified or would not otherwise be required to qualify but for this Section
3(d), or (ii) take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;




     (e) notify promptly each Holder of Registrable Securities under a Shelf Registration or
any Participating Broker-Dealer who has notified the Company in writing that it is utilizing
the Exchange Offer Registration Statement as provided in paragraph (f) below and, if
requested by such Holder or Participating Broker-Dealer, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the SEC or any
state securities authority for post-effective amendments and supplements to a Registration
Statement and Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Issuers contained in
any underwriting agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects, (v) of the
happening of any event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making of any
changes in such Registration Statement or Prospectus in order to make the statements therein
not misleading, (vi) of the receipt by any Issuer of any notification with respect to the
suspension of the qualification of the Registrable Securities or the Exchange Securities, as
the case may be, for sale in any jurisdiction or the initiation or, to the Issuers’
knowledge, threatening of any proceeding for such purpose and (vii) of any determination by
the Company that a post-effective amendment to such Registration Statement would be
appropriate;




     (f) in the case of the Exchange Offer Registration Statement (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution” which
section shall be reasonably acceptable to Merrill Lynch on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions taken or
policies made by the staff of the SEC with respect to the potential “underwriter” status of
any broker-dealer that holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities and that will be the beneficial



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owner (as defined in Rule 13d-3 under the 1934 Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, whether such positions or policies
have been publicly disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of Merrill Lynch on behalf of the Participating Broker-Dealers and
its counsel, represent the prevailing views of the staff of the SEC, including a statement
that any such broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has delivered to
the Company the notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request for a period not to exceed 90 days after the consummation of the Exchange
Offer, (iii) hereby consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any Person subject to the
prospectus delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the Prospectus or
any amendment or supplement thereto, and (iv) include in the Prospectus forming part of the
Exchange Offer Registration Statement (x) the following provision, or a provision
substantially similar to the following provision:




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




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




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




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




     (i) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities included within the coverage of such Shelf Registration Statement, and each
underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial statements and



-12-









 






schedules (without documents incorporated therein by reference and all exhibits
thereto, unless requested);




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




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




     (l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchasers on behalf
of such Holders; and make representatives of the Company as shall be reasonably requested by
the Holders of Registrable Securities, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;




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




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



-13-









 






as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so qualified in a timely
manner;




     (o) in the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such connection whether or
not an underwriting agreement is entered into and whether or not the registration is an
underwritten registration:




     (i) make such representations and warranties to the Holders of such Registrable
Securities and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings as may
be reasonably requested by them;




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




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




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




     (v) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the



-14-









 






indemnification provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to said
Section or, at the reasonable request of any underwriters, in the form customarily
provided to such underwriters in similar types of transactions; and




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




     The above shall be done at (i) the effectiveness of such Registration Statement (and
each post-effective amendment thereto) and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder;




     (p) in the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make available for
inspection by representatives of the Holders of the Registrable Securities, any underwriters
participating in any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by any of the foregoing,
all financial and other records, pertinent corporate documents and properties of the Company
reasonably requested by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information reasonably
requested by any such representative, underwriter, special counsel or accountant in
connection with a Registration Statement, and make such representatives of the Company
available for discussion of such documents as shall be reasonably requested by the Initial
Purchasers, provided however, that the foregoing inspection and information gathering shall
be coordinated on behalf of the Initial Purchasers by Merrill Lynch, Pierce, Fenner & Smith
in connection with any underwritten Shelf Registration Statement to which it is a party, and
on behalf of the Holders by one counsel designated by the Holders of a majority of the
Registrable Securities; provided, further, that any information provided pursuant to this
Section 3(p) that is designated in writing by the Issuers, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, and shall be used only in connection with
such Shelf Registration and the transactions contemplated thereby unless such disclosure is
made in connection with a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an accompanying
obligation of confidentiality;




     (q) (i) in the case of an Exchange Offer Registration Statement, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any Prospectus forming a
part thereof, any amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Initial Purchasers and
to counsel to the Holders of Registrable Securities and make such changes in any such
document prior to the filing thereof as the Initial Purchasers or counsel to the Holders of
Registrable Securities may reasonably request and, except as otherwise required by
applicable law, not file any such document in a form to which the Initial



-15-









 






Purchasers on behalf of the Holders of Registrable Securities and counsel to the
Holders of Registrable Securities shall not have previously been advised and furnished a
copy of or to which the Initial Purchasers on behalf of the Holders of Registrable
Securities or counsel to the Holders of Registrable Securities shall reasonably object, and
make the representatives of the Company available for discussion of such documents as shall
be reasonably requested by the Initial Purchasers; and




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




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




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




     (t) otherwise comply with all applicable rules and regulations of the SEC and make
available to the Company’s security holders, as soon as reasonably practicable after the
effective date of the Registration Statement, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;




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



-16-









 






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



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




          In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(k) hereof, and, if so
directed by the Company, such Holder will deliver to the Company (at its expense) all copies in
such Holder’s possession, other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Securities current at the time of receipt of such notice.




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




          4. Indemnification; Contribution. (a) The Issuers jointly and severally agree to
indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer,
each Person who participates as an underwriter (any such Person being an “Underwriter”) and
each Person, if any, who controls any Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:




-17-









 









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




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




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



provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by the Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto), provided, further,
that the Issuers shall not be liable to any such Holder, Participating Broker-Dealer or controlling
person to the extent that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense of any Holder, Participating Broker-Dealer or controlling
person resulted from the fact that such Holder or Participating Broker-Dealer or controlling person
sold Securities to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final Prospectus as then amended or supplemented if the
Issuers had previously furnished copies thereof to such Holder or Participating Broker-Dealer and
the loss, liability, claim, damage or expense of such Holder, Participating Broker-Dealer or
controlling person results from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospectus.




          (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless each Issuer,
the Initial Purchasers, each Underwriter and the other selling Holders, and each




-18-









 








of their respective directors and officers, and each Person, if any, who controls any Issuer,
the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included
therein (or any amendment or supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by such Holder expressly for use
in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment
or supplement thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.




          (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of the indemnity agreement in this Section 4. An indemnifying party may
participate at its own expense in the defense of such action and to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying party or parties be liable for the fees
and expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 4 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.




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




-19-









 








          (e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the Issuers on the one hand and the Holders and, if applicable, the Initial Purchasers on the
other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.




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




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




          Notwithstanding the provisions of this Section 4, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities sold
by it were offered exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.




          No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.




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




-20-









 








          5. Miscellaneous.




          5.1 Rule 144 and Rule 144A. For so long as the Issuers are subject to the reporting
requirements of Section 13 or 15 of the 1934 Act, the Issuers covenant that they will file the
reports required to be filed by them under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder. If the Issuers cease to be so
required to file such reports, the Issuers covenant that they will upon the request of any Holder
of Registrable Securities (a) make publicly available such information as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933 Act and they will
take such further action as any Holder of Registrable Securities may reasonably request, and (c)
take such further action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided by (i) Rule 144
under the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A under the 1933
Act, as such Rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has complied with such
requirements.




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




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




          5.4 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase Agreement with
respect to the Initial Purchasers; and (b) if to any Issuer, initially at the Company’s address set
forth in the Purchase Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt is acknowledged,




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if telecopied; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.




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




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




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




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




          5.8 Restriction on Resales. Until the expiration of two years after the original
issuance of the Securities, the Issuers will not, and will cause their “affiliates” (as such term
is defined in Rule 144(a)(1) under the 1933 Act) not to, resell any Securities which are
“restricted securities” (as such term is defined under Rule 144(a)(3) under the 1933 Act) that have
been reacquired by any of them and shall immediately upon any purchase of any such Securities
submit such Securities to the Trustee for cancellation.




          5.9 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




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be deemed to be an original and all of which taken together shall constitute one and the same
agreement.




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




          5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.




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




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




	 	 	 	 	 	 	 
	 	 	MYLAN LABORATORIES INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ EDWARD J. BORKOWSKI
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Edward J. Borkowski
	 

	 	 	 	 	 	Title: Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	MYLAN PHARMACEUTICALS INC.

MILAN HOLDING INC.

MYLAN BERTEK PHARMACEUTICALS INC.

MYLAN INC.

UDL LABORATORIES, INC.

MYLAN TECHNOLOGIES INC.

MYLAN INTERNATIONAL HOLDINGS, INC.

MYLAN CARIBE, INC.

MP AIR INC.

BERTEK INTERNATIONAL, INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ EDWARD J. BORKOWSKI
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Edward J. Borkowski
	 

	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 
	 	 	MLRE LLC
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ EDWARD J. BORKOWSKI
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Edward J. Borkowski
	 

	 	 	 	 	 	Title: Manager






 









 






Confirmed and accepted as of

the date first above written:



MERRILL LYNCH, PIERCE, FENNER & SMITH


INCORPORATED



BNY CAPITAL MARKETS, INC.

KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC.

PNC CAPITAL MARKETS, INC.

SUNTRUST CAPITAL MARKETS, INC.


By: MERRILL LYNCH, PIERCE, FENNER & SMITH


INCORPORATED



	 	 	 	 	 
	By:
	 	/s/ SARANG GADKARI	 	 
	 

	 	Name: Sarang Gadkari	 	 
	 

	 	Title: Managing Director