exv4w2



 





Exhibit 4.2


EXECUTION COPY




REGISTRATION RIGHTS AGREEMENT




by and among




Encore Medical IHC, Inc.




and




The Guarantors listed on Schedule A hereto




and




Banc of America Securities LLC




and




First Albany Capital Inc.




Dated as of October 4, 2004




 









 








REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is made and entered
into as of October 4, 2004, by and among Encore Medical IHC, Inc., a Delaware
corporation (the “Company”), the initial Guarantors listed on Schedule A
hereto, and any Guarantors which may from time to time become party hereto, by
executing a Joinder Agreement to the Registration Rights Agreement, a form of
which is attached as Exhibit A hereto (together, the “Guarantors”), and Banc of
America Securities LLC and First Albany Capital Inc. (collectively the “Initial
Purchasers”), who have agreed to purchase the Company’s 9.75% Senior
Subordinated Notes due 2012 (the “Initial Notes”) pursuant to the Purchase
Agreement (as defined below).



     This Agreement is made pursuant to the Purchase Agreement, dated as of
September 28, 2004 (the “Purchase Agreement”), by and among the Company, Encore
Medical Corporation and certain subsidiaries of the Company identified therein
and the Initial Purchasers (i) for the benefit of the Initial Purchasers and
(ii) for the benefit of the holders from time to time of the Notes (including
the Initial Purchasers). In order to induce the Initial Purchasers to purchase
the Initial Notes, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 5(h) of the Purchase Agreement.



     The parties hereby agree as follows:



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



     Additional Interest Payment Date: With respect to the Initial Notes, each
Interest Payment Date.



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



     Business Day: Any day except a Saturday, Sunday or other day that in the
City of New York, or in the city of the corporate trust office of the Trustee,
banks are authorized to close.



     Closing Date: The date of this Agreement.



     Commission: The Securities and Exchange Commission.



     Consummate: An Exchange Offer shall be deemed “Consummated” for purposes
of this Agreement upon the occurrence of (i) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company to the Registrar
under the



 









 







Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Notes that were tendered by Holders
thereof pursuant to the Exchange Offer.



     Effectiveness Target Date: As defined in Section 5.



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



     Exchange Notes: The 9.75% Senior Subordinated Notes due 2012, of the same
series under the Indenture as the Initial Notes, and the related Guarantees to
be issued to Holders in exchange for Transfer Restricted Securities pursuant to
this Agreement.



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



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



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



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



     Indenture: The Indenture, dated as of October 4, 2004, among the Company
and Wells Fargo Bank, N.A., as trustee (the “Trustee”), pursuant to which the
Notes are to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.



     Initial Notes: The 9.75% Senior Subordinated Notes due 2012, of the same
series under the Indenture as the Exchange Notes and the related Guarantees,
for so long as such securities constitute Transfer Restricted Securities.



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



     Initial Purchasers: As defined in the preamble hereto.



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



     NASD: National Association of Securities Dealers, Inc.



     Notes: The Initial Notes and the Exchange Notes.



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



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



     Registration Default: As defined in Section 5 hereof.



     Registration Statement: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in each case, including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.



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



     Shelf Filing Deadline: As defined in Section 4 hereof.



     Shelf Registration Statement: As defined in Section 4 hereof.



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



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



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



     Section 2. Securities Subject to This Agreement.



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



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



     Section 3. Registered Exchange Offer.



     (a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantors shall (i) cause to be
filed with the Commission not later than 90 days after the Closing Date, a
Registration Statement under the Securities Act relating to the Exchange Notes
and the Exchange Offer, (ii) use their reasonable best efforts to cause such



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Registration Statement to become effective not later than 180 days after
the Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer shall
be on the appropriate form permitting registration of the Exchange Notes to be
offered in exchange for the Transfer Restricted Securities and to permit
resales of Notes held by Broker-Dealers as contemplated by Section 3(c) below.



     (b) The Company and the Guarantors shall use their reasonable best efforts
to cause the Exchange Offer Registration Statement to be effective continuously
and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event shall such
period be less than 30 days after the date notice of the Exchange Offer is
mailed to the Holders. The Company and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No
securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company and the Guarantors shall use their
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 Business Days after the date
the Exchange Offer Registration Statement has become effective.



     (c) The Company shall indicate in a “Plan of Distribution” section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an “underwriter” within the meaning of the Securities Act and
must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Notes received by
such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement
may be satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.



     The Company and the Guarantors shall use their reasonable best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for resales of Notes
acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the



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Commission as announced from time to time, for a period ending on the
earlier of (i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective (ii) the date on which a Broker-Dealer is no
longer required to deliver a prospectus in connection with market-making or
other trading activities and (iii) the date on which all the Notes covered by
such Exchange Offer Registration Statement have been sold pursuant to such
Exchange Offer Registration Statement.



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



     Section 4. Shelf Registration.



     (a) Shelf Registration. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a)(i) below have
been complied with), (ii) for any reason the Exchange Offer is not Consummated
within 30 Business Days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement, or (iii) with respect to any Holder of
Transfer Restricted Securities, such holder notifies the Company prior to the
20th day following the consummation of the Exchange Offer that (A) such Holder
is prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired
by it in the Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales by such Holder, or (C) such
Holder is a Broker-Dealer and holds Initial Notes acquired directly from the
Company or one of its affiliates, then, upon such Holder’s request, the Company
and the Guarantors shall




     (x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the “Shelf
Registration Statement”) as soon as practicable but in any event on or
prior to 45 days after the filing obligation arises (such date being the
“Shelf Filing Deadline”), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders of
which shall have provided the information required pursuant to Section
4(b) hereof; and




     (y) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
prior to 90 days after the Shelf Filing Deadline, provided, however, that
in no event shall the Company and the Guarantors be obligated to cause
such Shelf Registration to be declared effective by the Commission prior
to 180 days after the closing of this offering.



     The Company and the Guarantors shall use their reasonable best efforts to
keep such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period until the earlier of
(i) the expiration of the period referred to in Rule 144(k)



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under the Securities Act (or any successor rule) with respect to Transfer
Restricted Securities, (ii) two years following the effective date of such
Shelf Registration Statement and (iii) the date on which all the Notes covered
by such Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement.



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



     Section 5. Additional Interest. (a) If (i) any of the Registration
Statements required by this Agreement is not filed with the Commission on or
prior to the date specified for such filing in this Agreement, (ii) any of such
Registration Statements has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer has not been Consummated
within 30 Business Days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose (each such
event referred to in clauses (i) through (iv), a “Registration Default”), the
Company hereby agrees that the interest rate borne by the Transfer Restricted
Securities shall be increased by 0.25% per annum during the 90-day period
immediately following the occurrence of any Registration Default and shall
increase by 0.25% per annum at the end of each subsequent 90-day period, but in
no event shall such increase exceed 1.00% per annum. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted
Securities, the interest rate borne by the relevant Transfer Restricted
Securities will be reduced to the original interest rate borne by such Transfer
Restricted Securities; provided, however, that, if after any such reduction in
interest rate, a different Registration Default occurs, the interest rate borne
by the relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions.



     (b) A Registration Default referred to in Section 5(iv) hereof shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of material events with respect to the
Company and the Guarantors that would need to be described in such Shelf
Registration Statement or the related Prospectus and such event is not so
described therein and (ii) the Company and the Guarantors are proceeding
promptly and in good faith to amend or supplement such Shelf Registration
Statement and related Prospectus to describe such events; provided, however,
that in any case if such Registration Default occurs for a continuous period in
excess of 30 days in any 12 month period, Additional Interest shall be payable
in accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.



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     All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such Note shall have been satisfied in full.



     Section 6. Registration Procedures.



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




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




     (ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it
is not an affiliate of the Company, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes
in its ordinary course of business. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the Company’s
preparations for the Exchange Offer. Each Holder, including any Holder
that is a Broker-Dealer, shall acknowledge and agree that any such Holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley & Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(which may include any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as



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applicable, of Regulation S-K if the resales are of Exchange Notes
obtained by such Holder in exchange for Initial Notes acquired by such
Holder directly from the Company.



     (b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all
the provisions of Section 6(c) below and shall use their reasonable best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company and the
Guarantors will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.



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




     (i) use their reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements including, if required by the Securities Act or any regulation
thereunder, financial statements of the Guarantors for the period
specified in Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration Statement
or the Prospectus contained therein (A) to contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein not misleading or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement or supplement to the
Prospectus or document incorporated by reference, in the case of clause
(A), correcting any such misstatement or omission, and, in the case of an
amendment, use their reasonable best efforts to cause such amendment to
be declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;




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




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



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




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




     (v) make available at reasonable times for inspection by the Initial
Purchasers, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such Initial Purchaser or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Company and the Guarantors and cause the Company’s and the
Guarantors’ officers and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness; provided, however, that the
foregoing inspection and information gathering shall be



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coordinated on behalf of the Initial Purchasers by Shearman &
Sterling LLP and on behalf of any other parties by one counsel designated
by and on behalf of such other parties as described in Section 7 hereof.




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




     (vii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies,
if so requested by the Holders of a majority in aggregate principal
amount of Notes covered thereby or the underwriter(s), if any;




     (viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules and, if
requested in writing, all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);




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




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




     (A) furnish to the Initial Purchasers, each selling Holder and
each underwriter, if any, in such substance and scope as they may
request and as are



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customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of the
Shelf Registration Statement:




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




     (2) an opinion, dated the date of the effectiveness of
the Shelf Registration Statement of counsel for the Company
and the Guarantors, covering the matters set forth in
paragraph (c) of Section 5 of the Purchase Agreement and such
other matter as such parties may reasonably request, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers and
other representatives of the Company and the Guarantors,
representatives of the independent public accountants for the
Company and the Guarantors, the Initial Purchasers’
representatives and the Initial Purchasers’ counsel in
connection with the preparation of such Registration
Statement and the related Prospectus and have considered the
matters required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness
of such statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality to a
large extent upon facts provided to such counsel by officers
and other representatives of the Company and the Guarantors
and without independent check or verification), no facts came
to such counsel’s attention that caused such counsel to
believe that the Shelf Registration Statement, at the time
such Registration Statement or any post-effective amendment
thereto became effective contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in such
Registration Statement as of its date contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes
and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and




     (3) customary comfort letters, dated as of the date of
the effectiveness of the Shelf Registration Statement from
(i) the Company’s and the Guarantors’ independent accountants
and (ii) the independent accountants of any other Person for
which financial statements are included in or incorporated by
reference in to such Shelf Registration



11









 






Statement, in the customary form and covering matters of
the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 5(a) of the Purchase
Agreement, without exception;




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




     (C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company or the Guarantors pursuant to this clause (x), if any.




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




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




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




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



12









 






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




     (xv) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;




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




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




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




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



13









 






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



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



     Section 7. Registration Expenses.



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



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



     (b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf



14









 







Registration Statement), the Company and the Guarantors will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Shearman & Sterling LLP or such other counsel as may be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.



     Section 8. Indemnification.



     (a) The Company agrees and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the persons referred to in this clause
(ii) being hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to
the fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing, settling, compromising, paying or defending
any claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Holder), joint or several, directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except (i) insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and in
conformity with information relating to any of the Holders furnished in writing
to the Company and the Guarantors by any of the Holders expressly for use
therein and (ii) with respect to any untrue statement or omission or alleged
untrue statement or omission of material fact made in any preliminary
prospectus relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Holder
from whom the Person asserting any such losses, claims, damages, or liabilities
purchased the Notes concerned if the Company or the Guarantors sustain the
burden of proving that (x) a prospectus relating to such Notes was required to
be delivered by such Holder under the Securities Act in connection with such
purchase, (y) such Holder sold the Notes to a Person whom such Holder failed to
send or give, at or prior to the written confirmation of the sale of such
Notes, a copy of the final prospectus (as amended or supplemented) and (z) any
loss, claim, damage or liability of such Holder results solely from an untrue
statement or omission or alleged untrue statement or omission of material fact
contained in or omitted from such preliminary prospectus which was corrected in
the final prospectus and such final prospectus was provided by the Company and
the Guarantors to such Holder sufficiently in advance of the closing of such
sale to allow for distribution of the final prospectus in a timely manner.
This indemnity agreement shall be in addition to any liability which the
Company or any Guarantor may otherwise have.



15









 





     In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company or any Guarantor, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Company and
the Guarantors in writing (provided that the failure to give such notice shall
not relieve the Company or the Guarantors of their respective obligations
pursuant to this Agreement). Such Indemnified Holder shall have the right to
employ its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder
is not entitled to indemnification hereunder). The Company and the Guarantors
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such Indemnified
Holders, which firm shall be designated by the Holders. The Company shall be
liable for any settlement of any such action or proceeding effected with the
Company’s prior written consent, which consent shall not be withheld
unreasonably, and the Company and the Guarantors agree to indemnify and hold
harmless any Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action effected with
the written consent of the Company. The Company and the Guarantors shall not,
without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Holder from all liability arising out of such
action, claim, litigation or proceeding.



     (b) Each Holder of Transfer Restricted Securities shall, severally and not
jointly, indemnify and hold harmless the Company, the Guarantors and their
respective officers, directors, partners, employees, representatives and
agents, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company and the
Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Company and the Guarantors to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company, the Guarantors, any such
controlling person, or their respective officers, directors, partners,
employees, representatives and agents in respect of which indemnity may be
sought against a Holder of Transfer Restricted Securities, such Holder shall
have the rights and duties given the Company and the Guarantors and the
Company, the Guarantors, such controlling person and their respective officers,
directors, partners, employees, representatives and agents shall have the
rights and duties given to each Indemnified Holder by Section 8(a). In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Notes giving rise to such indemnification obligation.



     (c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than
by reason of exceptions



16









 







provided in those Sections) in respect of any losses, claims, damages,
liabilities, judgments, actions or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other
hand, from the Initial Placement (which in the case of the Company shall be
deemed to be equal to the total gross proceeds from the Initial Placement as
set forth on the cover page of the Offering Memorandum) or if such allocation
is not permitted by applicable law, the relative fault of the Company and the
Guarantors on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand
and of the Indemnified Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Indemnified Holder and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.



     The Company and the Guarantors agree and each Holder of Transfer
Restricted Securities shall agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, none of the Holders (and its
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the net proceeds received by such
Holder from the sale of the Notes pursuant to a Registration Statement exceeds
the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Holders’ obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Initial Notes held by each of
the Holders hereunder and not joint.



     Section 9. Rule 144A. The Company and the Guarantors each hereby agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.



17









 





     Section 10. Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder’s Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such underwriting arrangements.



     Section 11. Selection Of Underwriters. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided that such investment
bankers and managers must be reasonably satisfactory to the Company.



     Section 12. Miscellaneous.



     (a) Remedies. The Company and the Guarantors each hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree
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, and will cause the
Guarantors not to, 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. Neither the Company nor any of the Guarantors has entered
into any agreement granting any registration rights with respect to its
securities to any Person pursuant to which any such Person would have the right
to include any securities in any Registration Statement to be filed with the
Commission as required under this Agreement. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company’s securities under any agreement
in effect on the date hereof.



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



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



18









 







Initial Purchasers with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.



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




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




     (ii) if to the Company or the Guarantors:




c/o Encore Medical Corporation

9800 Metric Blvd.

Austin, Texas 78758

Facsimile: (512) 832-6310

Attention: Harry L. Zimmerman




With a copy to:




Winstead Sechrest & Minick P.C.

401 Congress Avenue, Suite 2100

Austin, Texas 78701

Facsimile: (512) 370-2850

Attention: Darrell R. Windham




     (iii) if to the Initial Purchasers:




c/o Banc of America Securities LLC

9 West 57th Street

New York, New York 10019

Facsimile: (212) 583-8567

Attention: Legal Department





With a copy to:




Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022

Facsimile: (646) 848-7293

Attention: Andrew R. Schleider



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



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



19









 





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



     (g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.



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



     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.



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



     (k) Entire Agreement. This Agreement together with the Purchase
Agreement, the DTC Agreement and the Indenture (as defined in the Purchase
Agreement) is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company and the Guarantors with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.



20









 





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



	 	 	 	 	 
	 	 	ENCORE MEDICAL IHC, INC.
	 
	 	 	 	 
	

	 	By:	 	            /s/ Harry L. Zimmerman
 
	

	 	 	 	

	

	 	 	 	Name:  Harry L. Zimmerman
 
	

	 	 	 	Title:    Executive Vice President -
General Counsel
	 
	 	 	 	 
	 	 	ENCORE MEDICAL CORPORATION
	 
	 	 	 	 
	

	 	By:	 	            /s/ Harry L. Zimmerman
 
	

	 	 	 	

	

	 	 	 	Name:  Harry L. Zimmerman
 
	

	 	 	 	Title:    Executive Vice President -
General Counsel
	 
	 	 	 	 
	 	 	ENCORE MEDICAL L.P.
	 
	 	 	 	 
	 	 	By: Encore Medical GP,
Inc., its General Partner







	 	 	 	 	 
	

	 	By:	 	            /s/ Harry L. Zimmerman
 
	

	 	 	 	

	

	 	 	 	Name:  Harry L. Zimmerman
	

	 	 	 	Title:    Executive Vice President -
General Counsel






	 	 	 	 	 
	 	 	ENCORE MEDICAL ASSET CORPORATION
	 
	 	 	 	 
	

	 	By:	 	            /s/ Harry L. Zimmerman
 
	

	 	 	 	

	

	 	 	 	Name:  Harry L. Zimmerman
	

	 	 	 	Title:    Executive Vice President -
General Counsel







21









 







	 	 	 	 	 
	 	ENCORE MEDICAL GP, INC.

 	 
	 	By:	      /s/ Harry L. Zimmerman
 	 
	 	Name:  Harry L. Zimmerman 	 
	 	Title:    Executive Vice President - General Counsel	 	 
	 	 	 




	 	 	 	 	 
	 	ENCORE MEDICAL PARTNERS, INC.

 	 
	 	By:	      /s/ Harry L. Zimmerman
 	 
	 	Name:  Harry L. Zimmerman 	 
	 	Title:    Executive Vice President - General Counsel	 	 
	 	 	 




	 	 	 	 	 
	 	EMPI, INC.

 	 
	 	By:	      /s/ Harry L. Zimmerman
 	 
	 	Name:  Harry L. Zimmerman 	 
	 	Title:    Executive Vice President - General Counsel	 	 
	 	 	 






	 	 	 	 	 
	 	EMPI CORP.

 	 
	 	By:	      /s/ Harry L. Zimmerman
 	 
	 	Name:  Harry L. Zimmerman 	 
	 	Title:    Executive Vice President - General Counsel	 	 
	 	 	 








22









 






	 	 	 	 	 
	 	EMPI SALES CORP.

 	 
	 	By:	      /s/ Harry L. Zimmerman
 	 
	 	Name:  Harry L. Zimmerman 	 
	 	Title:    Executive Vice President - General Counsel	 	 
	 	 	 







23









 






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



BANC OF AMERICA SECURITIES LLC

FIRST ALBANY CAPITAL INC.




		
	By: 	Bank of America Securities LLC for itself

and on behalf of the other Initial Purchaser





	 	 	 
	By
	 	/s/ Christopher K. Ooten
	

	 	

	

	 	Authorized Signatory

Christopher K. Ooten

Vice President











24









 






SCHEDULE A




Guarantors




	 	 	 
	Guarantor
	 	Jurisdiction of Organization

	Encore Medical Corporation

	 	Delaware
	 
	 	 
	Encore Medical L.P.

	 	Delaware
	 
	 	 
	Encore Medical Asset Corporation

	 	Nevada
	 
	 	 
	Encore Medical GP, Inc.

	 	Nevada
	 
	 	 
	Encore Medical Partners, Inc.

	 	Nevada
	 
	 	 
	Empi, Inc.

	 	Minnesota
	 
	 	 
	Empi Corp.

	 	Minnesota
	 
	 	 
	Empi Sales Corp.

	 	Minnesota







 









 






EXHIBIT A




Form of Joinder Agreement to the Registration Rights Agreement




JOINDER AGREEMENT TO THE REGISTRATION RIGHTS AGREEMENT




     The undersigned hereby joins that certain Registration Rights Agreement,
dated as of October 4, 2004 (the “Registration Rights Agreement”), by and among
Encore Medical IHC, Inc., the Guarantors (as defined in the Registration Rights
Agreement), Banc of America Securities LLC and First Albany Capital Inc.
pursuant to this Joinder Agreement (the “Joinder Agreement”).



     From and after the date hereof, the undersigned shall be deemed to be a
Guarantor under the Registration Rights Agreement and shall be bound by the
terms thereof in such capacity and to the same extent as if it was an original
party thereto.



     Unless otherwise provided in this Joinder Agreement, capitalized terms
shall have the meaning set forth in the Registration Rights Agreement.



 









 







     In witness whereof, the parties hereto have each caused this Joinder
Agreement to be duly executed and delivered as of [DATE], 2004.



	 	 	 	 	 
	 	 	[NAME OF NEW GUARANTOR]
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title: