Exhibit 4.2


 


Execution Copy


 


REGISTRATION RIGHTS AGREEMENT


 


by and among


 


Encore
Medical Finance LLC


Encore Medical Finance Corp.


 


and


 


The Guarantors listed on Schedule A hereto


 


and


 


Banc of America Securities LLC


 


and


 


Credit Suisse Securities (USA) LLC


 


Dated as of November 3, 2006


 

















 


REGISTRATION
RIGHTS AGREEMENT


 


This
Registration Rights Agreement (this “Agreement”) is made and entered
into as of November 3, 2006, by and among Encore Medical Finance LLC, a
Delaware limited liability company (“Encore LLC”), and Encore Medical
Finance Corp., a Delaware corporation wholly owned by Encore LLC (“Encore
Corp.”, and together with Encore LLC, the “Issuers”), the Guarantors
listed on Schedule A hereto (the “Guarantors”), and Banc of America
Securities LLC and Credit Suisse Securities (USA) LLC (collectively, the “Initial
Purchasers”), who have agreed to purchase the Issuers’ 11 3/4% Senior
Subordinated 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 October 30,
2006 (the “Purchase Agreement”), by and among Grand Slam Acquisition
Corp. and the Initial Purchasers, as amended by the Joinder Agreement to the
Purchase Agreement, dated as of the date hereof, by the Issuers and the
Guarantors, (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(g) 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 11 3/4%
Senior Subordinated 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.


 


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


 


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


 


Indenture:  The Indenture, dated as of
November 3, 2006, 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.


 


NASD:  The 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.


 


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


 


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


 


2

















 


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
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


 


3

















 


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 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 October 29, 2007).


 


(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


 


4

















 


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 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


 


5

















 


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 Encore LLC
determines 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 Encore 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.


 


6

















 


SECTION
6. Registration Procedures.


 


(a)           Exchange
Offer Registration Statement. In connection with the Exchange Offer,
the Issuers 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 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
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, the Issuers and the Guarantors shall comply with all the provisions
of Section 6(c) below.


 


7

















 


(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 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


 


8

















 


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 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 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, 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


 


9

















 


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 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:


 


10

















 


(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 each of the Issuers, confirming, as of the
date thereof, the matters set forth in paragraphs (i), (ii) and (iii) 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 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


 


11

















 


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;


 


(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);


 


12

















 


(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 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 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 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.


 


13

















 


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 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
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 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 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 Shelf Registration
Statement is being prepared.


 


14

















 


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,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 Issuers 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 Issuers 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 Issuers 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 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


 


15

















 


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 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


 


16














 


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 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
Memorandum) 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


 


17

















 


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 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 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
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


 


18

















 


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 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 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


 


If to the Issuers or the
Guarantors:


 


c/o Encore Medical
Corporation

9800 Metric Blvd.

Austin, Texas 78758


 


19

















 


Facsimile:  (512) 832-6310

Attention:  Harry L. Zimmerman


 


with a copy to:


 


Simpson Thacher &
Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Facsimile:  (212) 455-2502

Attention:  Richard Fenyes


 


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 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 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


 


20

















 


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.


 


21

















 


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


 


 


	
   

  	
  ENCORE
  MEDICAL FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary and Assistant Treasurer

  



 


22

















 


	
   

  	
  ENCORE
  MEDICAL IHC, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENCORE
  MEDICAL ASSET CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary and Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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 PARTNERS, INC.

  
	
   

  	
   

  
	
   

  	
  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

  



 


Registration Rights Agreement


 

















 


	
   

  	
  EMPI
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary, Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPI
  SALES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary, Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPEX
  TECHNOLOGIES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary, Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPECTRA
  BRACE, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Harry L. Zimmerman

  	
   

  
	
   

  	
  Name:
  Harry L. Zimmerman

  
	
   

  	
  Title: Executive Vice President-General Counsel,
  Secretary, Assistant Treasurer

  



 


Registration Rights Agreement


 

















 


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


 


 


BANC OF AMERICA SECURITIES LLC

CREDIT SUISSE SECURITIES (USA) LLC


 


 


By:
BANK OF AMERICA SECURITIES LLC

On behalf of itself and the other Initial Purchaser


 


 


	
  By

  	
  /s/ Lex Maultsby

  	
   

  
	
   

  	
  Authorized Signatory

  



 


 


Registration
Rights Agreement


 

















 


SCHEDULE A


 


Guarantors


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of Organization

  
	
  Encore Medical Finance Corp.

  	
   

  	
  Delaware

  
	
  Encore Medical LLC

  	
   

  	
  Delaware

  
	
  Encore Medical, L.P.

  	
   

  	
  Delaware

  
	
  Encore Medical IHC, Inc.

  	
   

  	
  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

  
	
  Compex Technologies LLC

  	
   

  	
  Minnesota

  
	
  Spectra Brace, Ltd.

  	
   

  	
  Kentucky

  
	
  Empi Europe GmbH

  	
   

  	
  Germany

  
	
  Empi Germany GmbH

  	
   

  	
  Germany

  
	
  Ormed GmbH & Co. Kg

  	
   

  	
  Germany

  
	
  Ormed Ortho GmbH

  	
   

  	
  Germany

  
	
  Chattanooga Europe, B.V.B.A.

  	
   

  	
  Belgium

  
	
  Compex SA

  	
   

  	
  Switzerland

  
	
  Compex Medical SA

  	
   

  	
  Switzerland

  
	
  Compex Sport SA

  	
   

  	
  Switzerland

  
	
  Compex SAS

  	
   

  	
  France

  
	
  Compex Medical GmbH

  	
   

  	
  Germany

  
	
  Medi-Compex Iberica Srl

  	
   

  	
  Spain

  
	
  Compex Italia Srl

  	
   

  	
  Italy

  
	
  Encore Orthopedics FSC Limited

  	
   

  	
  Jamaica

  
	
  Ormed spol s.r.o.

  	
   

  	
  Czechoslovakia