Exhibit 4.2


 


EXECUTION COPY


 


This
Registration Rights Agreement (this “Agreement”) is made and entered
into as of November 20, 2007, by and among ReAble Therapeutics Finance
LLC, a Delaware limited liability company (“ReAble LLC”), and ReAble
Therapeutics Finance Corporation, a Delaware corporation wholly owned by ReAble
LLC (“ReAble Corp.”, and together with ReAble LLC, the “Issuers”),
the Guarantors listed on Schedule A hereto (the “Guarantors”), and
Credit Suisse Securities (USA) LLC and Banc of America Securities LLC
(collectively, the “Initial Purchasers”), who have agreed to purchase
the Issuers’ 107/8% Senior Notes due 2014 (the “Initial
Notes”) and the related guarantees (the “Initial Guarantees”)
pursuant to the Purchase Agreement (as defined below).


 


This Agreement
is made pursuant to the Purchase Agreement, dated as of November 7, 2007 (the “Purchase
Agreement”), by and among Reaction Acquisition Corp., the Issuers, the
Guarantors and the Initial Purchasers, as amended by the Joinder Agreement to the
Purchase Agreement, dated as of the date hereof, by the DJO Guarantors (as
defined in the Purchase Agreement), (i) for the benefit of the Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Notes (as hereinafter defined) (including the Initial Purchasers).  In order to induce the Initial Purchasers to
purchase the Initial Notes, the Issuers 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:


 


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


 


Business Day:  Any
day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions in the City of New York are authorized or obligated to be
closed.


 


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 delivery
by the Issuers 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.


 


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


 


Exchange
Guarantees:  The
guarantees to be issued by the Guarantors, relating to the Exchange Notes.


 

















 


Exchange
Notes:  The 107/8%
Senior Notes due 2014, of the same series under the Indenture as the Initial
Notes, to be issued to Holders in exchange for Transfer Restricted Securities
pursuant to this Agreement.


 


Exchange
Offer:  The
registration by the Issuers and the Guarantors under the Securities Act of the
Exchange Notes pursuant to a Registration Statement pursuant to which the
Issuers 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 and the Exchange
Guarantees 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.


 


FINRA:  The Financial
Industry Regulatory Authority 


 


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


 


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


 


Indenture:  The Indenture, dated
as of November 20, 2007, among the Issuers, the Guarantors and The Bank of
New York, as trustee (the “Trustee”), pursuant to which the Notes are to
be issued, as such Indenture may be amended or supplemented from time to time
in accordance with the terms thereof.


 


Initial
Guarantees:  As
defined in the preamble hereto.


 


Initial
Notes:  As
defined in the preamble hereto.


 


Initial
Placement Date:  The
date of the issuance and sale by the Issuers 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.


 


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.


 


Private
Exchange:  As
defined in Section 3(c) hereof.


 


Private
Exchange Notes: 
As defined in Section 3(c) hereof.


 


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
Statement:  Any
registration statement of the Issuers and the Guarantors relating to (a) an
offering of Exchange Notes pursuant to an Exchange Offer or (b) the


 


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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
Registration Statement:  As
defined in Section 4 hereof.


 


Transfer
Restricted Securities:  Each
Initial Note and the related Initial Guarantees, until the earliest to occur of
(a) the date on which such Initial Note and the related Initial Guarantees are
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 Initial Note and the related
Initial Guarantees have been effectively registered under the Securities Act
and disposed of in accordance with a Shelf Registration Statement, (c) the date
on which such Initial Note and the related Initial Guarantees are 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) and (d) the date on which such Initial Note and the
related Initial Guarantees may be resold without restriction pursuant to
Rule 144(k) under the Securities Act.


 


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 Issuers 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 Issuers and the Guarantors shall (i) prepare and file with the
Commission an Exchange Offer Registration Statement under the Securities Act,
(ii) use their reasonable efforts to cause such Exchange Offer
Registration Statement to become effective under the Securities Act,
(iii) in connection with the foregoing, to 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) 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, to commence the Exchange Offer. 
The 


 


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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
Issuers 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 20 Business Days after the date notice of the Exchange
Offer is mailed to the Holders.  The
Issuers 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
Issuers and the Guarantors shall use commercially reasonable efforts to cause
the Exchange Offer to be Consummated on or before the 360th day following the
Initial Placement Date (or November 14, 2008).


 


(c)           If,
prior to consummation of the Exchange Offer, the Initial Purchasers hold any
Initial Notes acquired by them that have the status of an unsold allotment in
the initial distribution, the Issuers, upon the request of the Initial
Purchasers, shall simultaneously with the delivery of the Exchange Notes issue
and deliver to the Initial Purchasers, in exchange (the “Private Exchange”)
for such Initial Notes held by any such Holder, a like principal amount of
notes (the “Private Exchange Notes”) of the Issuers, guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange
Notes.  The Private Exchange Notes shall
be issued pursuant to the same indenture as the Exchange Notes and bear the
same CUSIP number as the Exchange Notes if permitted by the CUSIP Service
Bureau.


 


(d)           The
Issuers 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 Issuers), 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 Issuers
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) 90 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 Issuers
shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 90-day (or shorter
as provided in the foregoing sentence) period in order to facilitate such
resales.


 


SECTION 4.           Shelf Registration.  


 


(a)           Shelf Registration.  If (1) because of any change in law or in
currently prevailing interpretations of the staff of the Commission, the
Issuers are not permitted to effect the Exchange Offer, (2) the Exchange Offer
is not consummated within 360 days following the Initial Placement Date,
(3) any holder of Private Exchange Notes so requests in writing to the Issuers
at any time within 30 days after the consummation of the Exchange Offer, or
(4) in the case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Securities on the date of the exchange that
may be sold without restriction under state and federal securities laws (other
than due solely to the status of such Holder as an affiliate of the Issuers
within the meaning of the Securities Act) and so notifies the Issuers within 30
days after such Holder first becomes aware of such restrictions, in the case of
each of clauses (1) to and including clause (4) of this sentence, then, upon
such Holder’s request, the Issuers and the Guarantors shall:


 


(x)            use their reasonable
best efforts to file 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 after the filing obligation arises, 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 commercially
reasonable efforts to cause such Shelf Registration Statement to be declared
effective promptly by the Commission.


 


The Issuers
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, until the earliest of (i) two years after the
Initial Placement Date of the Initial Notes, (ii) such time as all of the
Initial Notes have been sold thereunder or (iii) the date upon which all
Initial Notes covered such Shelf Registration Statement become eligible for
resale, without regard to volume, manner of sale or other restrictions
contained in Rule 144(k) under the Securities Act (or any successor rule) (the “Effectiveness
Period”).  Notwithstanding anything
to the contrary in this Agreement, at any time, the Issuers may delay the filing
of any Shelf Registration Statement or delay or suspend the effectiveness
thereof, for a reasonable period of time, but not in excess of 60 consecutive
days or more than three (3) times during any calendar year (each, a “Shelf
Suspension Period”), if the Board of Directors of ReAble LLC determines 


 


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reasonably and in good faith
that the filing of any such Initial Shelf Registration Statement or the
continuing effectiveness thereof would require the disclosure of non-public
material information that, in the reasonable judgment of the Board of Directors
of ReAble LLC, would be detrimental to the Issuers if so disclosed or would
otherwise materially adversely affect a financing, acquisition, disposition, merger
or other material transaction or such action is required by applicable law.


 


(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 Issuers in writing, within 20 Business Days after receipt of a
request therefor, such information as the Issuers 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 Issuers all information required to
be disclosed in order to make the information previously furnished to the
Issuers by such Holder not materially misleading.


 


SECTION 5.           Additional Interest.  


 


If
(a) the Exchange Offer has not been Consummated or a Shelf Registration
Statement has not been declared effective by the Commission on or prior to the
360th day after the Initial Placement Date, or (b) if applicable, a Shelf
Registration Statement has been declared effective but shall thereafter cease
to be effective during the Effectiveness Period (other than because of the sale
of all of the Transfer Restricted Securities registered thereunder), then
additional interest (“Additional Interest”) shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum (which rate will be
increased by an additional 0.25% per annum for each subsequent 90-day period
that such Additional Interest continues to accrue; provided
that the rate which such Additional Interest accrues may in no event exceed
1.00% per annum) (such Additional Interest to be calculated by the Issuers)
commencing on the (x) 361st day after the Initial Placement Date, in the case
of clause (a) above, or (y) the day such Shelf Registration ceases to be
effective in the case of clause (b) above; provided, however, that upon the exchange of the Exchange Notes for
all Transfer Restricted Securities tendered, or upon the effectiveness of the
applicable Shelf Registration Statement which had ceased to remain effective,
Additional Interest on the Notes in respect of which such events relate as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue.  Notwithstanding
any other provisions of this Section 5, the Issuers shall not be obligated to
pay Additional Interest provided in this Section 5 during a Shelf Suspension
Period permitted by Section 4(a) hereof.


 


SECTION 6.           Registration Procedures.  


 


(a)           Exchange Offer Registration Statement.  In connection with the Exchange
Offer, each of the Issuers and each of 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 Issuers there is a question as to
whether the Exchange Offer is permitted by applicable law and it is advisable
to do so, the Issuers and the Guarantors hereby agree to seek a no-action 


 


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letter or
other favorable decision from the Commission allowing the Issuers and the
Guarantors to Consummate an Exchange Offer for such Initial Notes.  The Issuers 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 Issuers 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 Issuers 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 Issuers, prior to the Consummation thereof, a written
representation to the Issuers (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 Issuers, (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 Issuers’ 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 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 Issuers.


 


(b)           Shelf Registration Statement.  In connection with the Shelf Registration
Statement, each of the Issuers and each of the Guarantors shall comply with all
the provisions of Section 6(c) below.


 


(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 Issuers 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; upon the occurrence of any event that would cause 


 


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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 Issuers 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 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, and (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 Issuers 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 counsel for 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 


 


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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, if not available on the Commission’s EDGAR database), 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 reasonable period, and the Issuers
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 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
reasonably available 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 material financial and other records, pertinent
corporate documents and properties of the Issuers and the Guarantors and cause
the Issuers’ 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, in each case, as shall be
reasonably necessary to enable such persons to conduct an investigation within
the meaning of Section 11 of the Securities Act; provided,
however, (A) that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by Cravath, Swaine & Moore 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, and (B) that any information that is
reasonably and in good faith designated by the Issuers in writing as
confidential at the time of delivery of such information shall be kept
confidential by the Initial Purchasers, the Holders, or any such underwriter,
attorney, accountant or other agent, unless (1) disclosure of such information
is required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (2) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (3) such information becomes generally available to
the public other than as a result of a disclosure or failure to safeguard such
information by such person or (4) such information becomes available to such
Initial Purchaser, Holder, underwriter, attorney, accountant or other agent
from a source other than the Issuers and such source is not known, after due
inquiry, by the relevant Initial Purchaser, Holder, underwriter, attorney,
accountant or other agent to be bound by a confidentiality agreement or is not
otherwise under a duty of trust to the Issuers.


 


(vi)          if
requested in writing by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus, pursuant 


 


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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 Issuers are notified
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;


 


(vii)         use
commercially reasonable efforts to confirm that the ratings assigned to the
Initial Notes will apply to the Transfer Restricted Securities covered by the
Registration Statement, 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
Issuers 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 such agreements (including an underwriting agreement), 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 Issuers 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 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 


 


10

















 


each of the
Issuers, confirming, as of the date thereof, the matters set forth in
paragraphs (i), (ii) and (iii) of Section 5(f) 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 Issuers and the Guarantors, in form, scope and
substance reasonably satisfactory to the managing underwriter, addressed to the
underwriters covering the matters customarily covered in opinions, reasonably
requested in underwritten offerings, and in any event including a statement to
the effect that such counsel has participated in conferences with officers and
other representatives of the Issuers and the Guarantors, representatives of the
independent public accountants for the Issuers 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 Issuers 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 in form, scope and substance reasonably satisfactory to
the managing underwriter from (a) the Issuers’ and the Guarantors’ independent
accountants and (b) the independent accountants of any other Person for which
financial statements are included in or incorporated by reference in to such
Shelf Registration Statement, in the customary form and covering matters of the
type customarily covered in comfort letters by underwriters in connection with
primary underwritten offerings;


 


11

















 


(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 Issuers or the Guarantors pursuant to this clause (x), if any.


 


If at any time
the representations and warranties of the Issuers and the Guarantors
contemplated in clause (A)(1) above cease to be true and correct, the Issuers
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 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 Issuers 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 Issuers 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
Issuers for cancellation;


 


(xiii)         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);


 


(xiv)        use
commercially reasonable 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 


 


12

















 


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 Issuers;


 


(xvii)       cooperate
and assist in any filings required to be made with the FINRA 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 FINRA, 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 the Issuers’
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 Issuers’ 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


 


(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 Issuers 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)(xv) hereof,
or until it is advised in writing (the “Advice”) by the Issuers 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
Issuers, each Holder 


 


13

















 


will deliver
to the Issuers (at the Issuers’ 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 Issuers 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)(xv) 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.


 


SECTION 7.           Registration Expenses.  


 


(a)           All
expenses incident to the Issuers’ or the Guarantors’ performance of or
compliance with this Agreement will be borne by the Issuers 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 FINRA (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 FINRA)); (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 Issuers, the
Guarantors and, subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; (v) all fees and disbursements of independent certified public
accountants of the Issuers and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance);
and (vi) all fees and expenses of the trustee and the exchange agent and
their counsel.


 


The Issuers
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
Issuers or the Guarantors.


 


(b)           In
connection with any Shelf Registration Statement required by this Agreement,
the Issuers and the Guarantors will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities being registered pursuant to the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Cravath, Swaine &
Moore 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 Shelf Registration Statement is being prepared.


 


SECTION 8.           Indemnification.  


 


(a)           The
Issuers 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, 


 


14

















 


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 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 Issuers and the Guarantors by any of the Holders expressly for use
therein.  This indemnity agreement shall
be in addition to any liability which the Issuers or any Guarantor may
otherwise have.


 


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 Issuers or any
Guarantor, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Issuers and the Guarantors
in writing (provided that the failure to give such
notice shall not relieve the Issuers or the Guarantors of their respective
obligations pursuant to this Agreement except to the extent they are materially
prejudiced as a proximate result of such failure).  In case any such action is brought against
any Indemnified Holder and such Indemnified Holder seeks or intends to seek
indemnity from the Issuers or the Guarantors, the Issuers or the Guarantors
will be entitled to participate in and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the Indemnified Holder promptly after receiving the
aforesaid notice from such Indemnified Holder, to assume the defense thereof
with counsel reasonably satisfactory to such Indemnified Holder; provided, however,
if the defendants in any such action include both the Indemnified Holder and
the Issuers or the Guarantor and the Indemnified Holder shall have reasonably
concluded (based on the advice of counsel) that a conflict may arise between
the positions of the Issuers or the Guarantors and the Indemnified Holder in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other Indemnified Holders which are different from or
additional to those available to the Issuers or the Guarantors, the Indemnified
Holder or Holders shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action
on behalf of such Indemnified Holder or Holders.  Upon receipt of notice from the Issuers or
Guarantors to such Indemnified Holder of the Issuers’ or the Guarantors’
election so to assume the defense of such action and approval by the
Indemnified Holder of counsel, the Issuers or the Guarantors will not be liable
to such Indemnified Holder under this Section 8 for any legal or other expenses
subsequently incurred by such Indemnified Holder in connection with the defense
thereof unless (i) the Indemnified Holder shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the Issuers or the Guarantors shall not be liable for
the expenses of more than one separate counsel (together with local counsel),
approved by the Issuers or the Guarantors, representing the Indemnified Holders
who are parties to such action) or (ii) the Issuers or the Guarantors shall not
have employed counsel satisfactory to the 


 


15

















 


Indemnified
Holder to represent the Indemnified Holder within a reasonable time after
notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the Issuers or the
Guarantors.  It is understood and agreed
that the Issuers or the Guarantors shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (together with any local
counsel) for all Indemnified Holders. 
Each Indemnified Holder, as a condition to indemnification hereunder,
shall use all reasonable efforts to cooperate with the Issuers or the
Guarantors in the defense of any such action or claim. The Issuers shall not be
liable for any settlement of any such action or proceeding effected without the
Issuers’ prior written consent, but if settled with such consent or there be a
final judgment for the plaintiff, the Issuers 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 such settlement or judgment.  The Issuers 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 Issuers, 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 Issuers 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
Issuers 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 Issuers, 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 Issuers and the Guarantors and the
Issuers, 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 provided in those Sections, including by reason of failure
to notify the Issuers and the Guarantors of indemnification obligations
thereunder to the extent that they are materially prejudiced as a proximate
result of such failure) 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 Issuers and the
Guarantors, on the one hand, and the Holders, on the other hand, from the
Initial Placement (which in the case of the 


 


16

















 


Issuers 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 Circular) or if such allocation is
not permitted by applicable law, the relative fault of the Issuers 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 Issuers 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 Issuers 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 Issuers
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 Issuers
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.


 


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 


 


17

















 


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 Issuers.


 


SECTION 12.         Miscellaneous.  


 


(a)           Remedies.  The
Issuers 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 Issuers will not, and will
cause the Guarantors to not, on or after the date of this Agreement enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.  Neither the Issuers
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 Issuers’ securities under any agreement in effect on the date hereof.


 


(c)           Adjustments Affecting the Notes.  The Issuers 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 Issuers have
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 Issuers shall obtain the written consent
of the 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 


 


18

















 


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 Initial Purchasers:


 


c/o Credit Suisse
Securities (USA) LLC

Eleven Madison Avenue

New York, New York  10010-3629

Facsimile:  (212) 583-8567

Attention: LCD-IBD


 


with a copy to:


 


Cravath, Swaine &
Moore LLP

825 Eighth Avenue

New York, New York  10019

Attention:  Damien Zoubek, Esq.


 


If to the Issuers or the
Guarantors:


 


c/o ReAble Therapeutics Finance LLC


1430 Decision Street


Vista, California 92081


Facsimile: (760) 734-3536


Attention:  General Counsel


 


with a copy to:


 


Simpson Thacher &
Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Facsimile:  (212) 455-2502


Attention:  Richard Fenyes, Esq.


 


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.


 


(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 


 


19

















 


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.


 


(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 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 Issuers 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.


 


[Signature Page Follows]


 


20

















 


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


 


 


	
   

  	
  REABLE THERAPEUTICS FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  REABLE THERAPEUTICS FINANCE

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  REABLE THERAPEUTICS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL PARTNERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  



 


 


Signature
Page to the Registration Rights Agreement


 

















 


	
   

  	
  ENCORE MEDICAL GP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL, LP

  
	
   

  	
  By: ENCORE MEDICAL GP, INC., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL ASSET CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPI, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  



 


 


Signature
Page to the Registration Rights Agreement


 

















 


	
   

  	
  EMPI CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPICARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  IOMED, LLC

  
	
   

  	
  By: EMPI CORP., its sole member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
  Name: Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President, General
  Counsel,

  Secretary and Assistant Treasurer

  



 


 


Signature
Page to the Registration Rights Agreement


 

















 


	
   

  	
  DJO INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Donald M. Roberts

  	
   

  
	
   

  	
  Name: Donald M. Roberts

  
	
   

  	
  Title: Senior Vice President, General
  Counsel

  and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DJO, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
     /s/ Donald M. Roberts

  	
   

  
	
   

  	
  Name: Donald M. Roberts

  
	
   

  	
  Title: Senior Vice President, General
  Counsel

  and Secretary

  



 


 


Signature
Page to the Registration Rights Agreement


 

















 


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


 


 


	
  CREDIT SUISSE SECURITIES (USA) LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
     /s/ Edward L. Neuburg

  	
   

  	
   

  
	
   

  	
   Name: Edward L. Neuburg

  	
   

  
	
   

  	
   Title: Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANC OF AMERICA SECURITIES LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
     /s/ K. James Pirouz

  	
   

  	
   

  
	
   

  	
   Name: K. James Pirouz

  	
   

  
	
   

  	
   Title: Principal

  	
   

  
					



 


Signature
Page to the Registration Rights Agreement


 

















 


SCHEDULE A


 


Guarantors


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of Organization

  
	
  DJO Incorporated

  	
   

  	
  Delaware

  
	
  DJO, LLC

  	
   

  	
  Delaware

  
	
  ReAble Therapeutics LLC

  	
   

  	
  Delaware

  
	
  Encore Medical Partners, Inc.

  	
   

  	
  Nevada

  
	
  Encore Medical GP, Inc.

  	
   

  	
  Nevada

  
	
  Encore Medical, LP

  	
   

  	
  Delaware

  
	
  Empi, Inc.

  	
   

  	
  Minnesota

  
	
  Empi Corp.

  	
   

  	
  Minnesota

  
	
  Encore Medical Asset Corp.

  	
   

  	
  Nevada

  
	
  EmpiCare, Inc.

  	
   

  	
  Kentucky

  
	
  IOMED, LLC

  	
   

  	
  Utah

  



 


A-1