Exhibit 4.5


 


EXECUTION COPY


 


Tyco International Finance S.A.


 


U.S.$421,961,000 7.0% Notes due 2019

U.S.$707,404,000 6.875% Notes due 2021


 


Fully and unconditionally guaranteed as to the

payment of principal, premium,

if any, and interest by


 


Tyco International Ltd.


 


Exchange and Registration Rights Agreement


 


June 3,
2008


 


To
each of the Holders (as defined herein):


 


Tyco International Finance
S.A., a Luxembourg
public limited liability company (the “Company”), proposes to issue and sell to
you in a Registered Exchange Offer (as defined by the Offering Memorandum dated
April 11, 2008 (the “Offering Memorandum”)), upon the terms set forth in
the Offering Memorandum, its $421,961,000 7.0% Notes due 2019 and $707,404,000 6.875%
Notes due 2021,
which are fully and unconditionally guaranteed as to the payment of principal,
premium, if any, and interest by Tyco International Ltd. (the “Guarantor”). As
an inducement to you to participate in the Registered Exchange Offer and in
satisfaction of a condition to your obligations thereunder, the Company and the
Guarantor agree with you for the benefit of holders (as defined herein) from
time to time of the Registrable Securities (as defined herein) as follows:


 


1.                                       Certain Definitions. For purposes of this Exchange and Registration Rights
Agreement, the following terms shall have the following respective meanings:


 


“Base Interest” shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.


 


The term “broker-dealer”
shall mean any broker or dealer registered with the Commission under the
Exchange Act.


 


“Closing Date” shall mean the date on which the Securities are
initially issued.


 


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“Commission” shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.


 


“Effective Time,” in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.


 


“Electing Holder”
shall mean any holder of Registrable Securities that has returned a completed
and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.


 


“Exchange Act” shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.


 


“Exchange Registration” shall have the meaning assigned thereto in Section 3(c) hereof.


 


“Exchange Registration Statement” shall have the meaning assigned thereto in Section 2(a) hereof.


 


“Exchange Securities” shall have the meaning assigned thereto in Section 2(a) hereof.


 


“Free Writing Prospectus”
means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company or used or referred to
by the Company in connection with the sale of the Securities or the Exchange
Securities.


 


The term “holder” or “Holder”
shall mean each of the holders of the Securities and other persons who acquire
Registrable Securities from time to time (including any successors or assigns),
in each case for so long as such person owns any Registrable Securities.


 


“Indenture” shall mean the Indenture, dated as of June 9, 1998,
among the Company, the Guarantor and The Bank of
New York, as Trustee, as supplemented by the Indenture Supplements.


 


“Indenture Supplements” shall mean the two supplements to the Indenture, dated
as of June 3. 2008, among the Company, the Guarantor, Tyco International
Group S.A., a Luxembourg Company, and Wilmington Trust Company, as successor to
The Bank of New York, as Trustee, containing the amendments to the Indenture
that are more fully described in Annex A to the Offering Memorandum.


 


“Notice and Questionnaire”
means a Notice of Registration Statement and Selling Securityholder
Questionnaire substantially in the form of Exhibit A hereto.


 


The term “person” shall
mean a corporation, association, partnership, organization, business,
individual, government or political subdivision thereof or governmental agency.


 


“Registrable Securities” shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security
when (i) in the circumstances contemplated by Section 2(a) hereof,
the Security has been exchanged for an Exchange Security in the Subsequent
Exchange Offer as contemplated in Section 2(a) hereof (provided that any


 


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Exchange Security that, pursuant to the last two
sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the Resale Period referred to in Section 2(a));
(ii) in the circumstances contemplated by Section 2(b) hereof, a
Shelf Registration Statement registering such Security under the Securities Act
has been declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Company or
pursuant to the Indenture; (iv) such Security is eligible to be sold
pursuant to paragraph (d)(1)(ii) of Rule 144; or (v) such
Security shall cease to be outstanding.


 


“Registration Default” shall have the meaning assigned thereto in Section 2(c) hereof.


 


“Registration Default Period” shall have the meaning assigned thereto in Section 2(c) hereof.


 


“Registration Expenses” shall have the meaning assigned thereto in Section 4
hereof.


 


“Resale Period” shall have the meaning assigned thereto in Section 2(a) hereof.


 


“Restricted Holder” shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder’s business, (iii) a
holder who has arrangements or understandings with any person to participate in
the Subsequent Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to a
Subsequent Exchange Offer in exchange for Registrable Securities acquired by
the broker-dealer directly from the Company.


 


“Rule 144,” “Rule 405”
and “Rule 415”
shall mean, in each case, such rule promulgated under the Securities Act
(or any successor provision), as the same shall be amended from time to time.


 


“Securities” shall mean, collectively, the $421,961,000 7.0%
Notes due 2019 and the $707,404,000 6.875% Senior Notes due 2021 of the Company to be issued and sold to the holders, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Security is entitled to the benefit of the guarantee provided
for in the Indenture (the “Guarantee”) and, unless the context otherwise
requires, any reference herein to a “Security,” an “Exchange Security” or a “Registrable
Security” shall include a reference to the related Guarantee.


 


“Securities Act” shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.


 


“Shelf Registration” shall have the meaning assigned thereto in Section 2(b) hereof.


 


“Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b) hereof.


 


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“Special Interest” shall have the meaning assigned thereto in Section 2(c) hereof.


 


“Subsequent Exchange Offer” shall have the meaning assigned thereto in Section 2(a) hereof.


 


“Suspension Event” shall have the meaning assigned thereto in Section 3(i) hereof.


 


“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.


 


Unless the context otherwise requires, any reference
herein to a “Section” or “clause” refers to a Section or clause, as the
case may be, of this Exchange and Registration Rights Agreement, and the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this
Exchange and Registration Rights Agreement as a whole and not to any particular
Section or other subdivision.


 


2.                                  Registration Under the Securities
Act.


 


(a)                Except as set forth in Section 2(b) below, the
Company and the Guarantor, jointly and severally, agree to file under the
Securities Act, as soon as practicable, a registration statement relating to an
offer to exchange (such registration statement, the “Exchange Registration
Statement”, and such offer, the “Subsequent Exchange Offer”) any and all of the
Securities for a like aggregate principal amount of debt securities issued by
the Company  and guaranteed by the Guarantor,
which debt securities and guarantee  are
substantially identical to the Securities and the related Guarantee,
respectively (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been registered
pursuant to an effective registration statement under the Securities Act and do
not contain provisions for the additional interest contemplated in Section 2(c) below
(such new debt securities hereinafter called “Exchange Securities”). The
Company and the Guarantor, jointly and severally, agree to use their
commercially reasonable efforts to cause the Exchange Registration Statement to
be declared effective under the Securities Act within 245 days following the
Closing Date. The Company and the Guarantor, jointly and severally, agree to
use their commercially reasonable efforts to cause the Registrable Securities
to be freely tradeable (the “Transferability Condition”) under Rule 144 by
Holders of the Registrable Securities who are not Affiliates of the Company or
the Guarantor from the 180th day after the Closing Date until the first
anniversary of the Closing Date (the “144 Period”). The Subsequent Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i) the
Company having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Subsequent Exchange Offer and (ii) the
Company having exchanged, pursuant to the Subsequent Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Subsequent Exchange Offer, which
shall be on a date that is at least 30 days following the commencement of the
Subsequent Exchange Offer. The Subsequent Exchange Offer shall be deemed to
have been “completed” only if the debt securities and related guarantee
received by holders other than Restricted Holders in the Subsequent Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America. The Company and the
Guarantor, jointly and severally, agree (x) to include in the Exchange
Registration Statement a prospectus for use


 


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in any resales by any holder of Exchange Securities that
is a broker-dealer and (y) to keep such Exchange Registration Statement
effective for a period (the “Resale Period”) beginning when Exchange Securities
are first issued in the Subsequent Exchange Offer and ending upon the earlier
of the expiration of the 180th day after the Subsequent Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Registration Statement, each such
holder shall have the benefit of the rights of indemnification and contribution
set forth in Sections 6(a), (c), (d) and (e) hereof.


 


(b)               If (i) on or prior to the time the Subsequent
Exchange Offer is completed existing Commission interpretations are changed
such that the debt securities or the related guarantee received by holders
other than Restricted Holders in the Subsequent Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder without restriction under the Securities Act, (ii) the Subsequent
Exchange Offer has not been completed within 290 days following the Closing
Date or (iii) the Subsequent Exchange Offer is not available to any holder
of the Securities, the Company shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Subsequent Exchange Offer contemplated by
Section 2(a), file under the Securities Act as soon as practicable, but no
later than the later of 60 days after the time such obligation to file arises,
a “shelf” registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted
by the Commission (such filing, the “Shelf Registration” and such registration
statement, the “Shelf Registration Statement”). The Company and the Guarantor,
jointly and severally, agree to use their commercially reasonable efforts (x) to
cause the Shelf Registration Statement to become or be declared effective no
later than  120 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable Securities
outstanding, provided, however,
that no holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part thereof
for resales of Registrable Securities unless such holder is an Electing Holder,
and (y) after the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Registrable Securities that is not
then an Electing Holder, to take any action reasonably necessary to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to identify
such holder as a selling securityholder in the Shelf Registration Statement, provided, however, that nothing in this Clause (y) shall
relieve any such holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof.
The Company and the Guarantor, jointly and severally, further agree to
supplement or make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Guarantor for such Shelf
Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company and the Guarantor, jointly
and severally, agree to furnish to each Electing Holder copies of any such
supplement or amendment prior to its being used or promptly following its
filing with the Commission. The Company’s obligation to file a Shelf
Registration Statement under clause (i) of this Section 2(b), to
cause such Shelf Registration Statement to become and remain effective and to
comply with its other undertakings in this Section 2(b) shall
terminate upon the completion of the Subsequent Exchange Offer pursuant to Section 2(a).


 


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(c)                In the event that the Transferability Condition is not
met during the 144 Period (a “Registration Default,” and each period during
which a Registration Default has occurred and is continuing, a “Registration
Default Period”), then, as liquidated damages for such Registration Default,
subject to the provisions of Section 8(b) hereof, special interest (“Special
Interest”), in addition to the Base Interest, shall accrue at a per annum rate
of 0.25% for the first 90 days of the Registration Default Period, and at a per
annum rate of 0.50% thereafter for the remaining portion of the Registration
Default Period.


 


(d)               The Company and the Guarantor shall take  all actions necessary or advisable to be taken by them to
ensure that the transactions contemplated herein are effected as so
contemplated, including all actions necessary or desirable to register the
Guarantee under the registration statement contemplated in Section 2(a) or
2(b) hereof, as applicable.


 


(e)                Any reference herein, other than any such reference in Sections
3(d)(vi) and (vii), to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein, other than any
such reference in Sections 3(d)(vi) and (vii), to any post-effective
amendment to a registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by reference
as of such time.


 


3.                    Registration Procedures.


 


If the Company and
the Guarantor file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall
apply:


 


(a)                At or before the Effective Time of the Subsequent
Exchange Offer or the Shelf Registration, as the case may be, the Company and
the Guarantor shall qualify the Indenture under the Trust Indenture Act of
1939.


 


(b)               In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.


 


(c)                In connection with the obligations of the Company and the
Guarantor with respect to the registration of Exchange Securities as
contemplated by Section 2(a) (the “Exchange Registration”), if applicable,
the Company and the Guarantor shall, as soon as practicable (or as otherwise
specified):


 


(i)                                     prepare and file with the Commission, as soon as
practicable, an Exchange Registration Statement on any form which may be
utilized by the Company and which shall permit the Subsequent Exchange Offer
and resales of Exchange Securities by broker-dealers during the Resale Period
to be effected as contemplated by Section 2(a), and use its commercially
reasonable efforts to cause such Exchange Registration Statement to become
effective as soon as practicable thereafter, but no later than 245 days after
the Closing Date;


 


(ii)                                  use its commercially reasonable efforts to commence and
complete the Subsequent Exchange Offer promptly, but no later than 45 days
after such registration statement has become effective, hold the Subsequent
Exchange Offer open for at least 30 days and  exchange
Exchange Securities for all Registrable


 


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Securities that have been properly tendered and not
withdrawn on or prior to the expiration of the Subsequent Exchange Offer;


 


(iii)                               subject to the provisions of Section 3(i), as soon
as practicable prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) hereof
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange
Registration Statement, and promptly provide each broker-dealer holding
Exchange Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the Resale
Period, for use in connection with resales of Exchange Securities;


 


(iv)                              promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement, and
confirm such advice in writing, (A) when such Exchange Registration
Statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to
such Exchange Registration Statement or any post-effective amendment, when the
same has become effective, (B) of the issuance by the Commission of any
stop order suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that purpose, or (C) of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Exchange Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;


 


(v)                                 use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at the earliest
practicable date;


 


(vi)                              use its commercially reasonable efforts to (A) register
or qualify the Exchange Securities under the securities laws or blue sky laws
of such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Subsequent Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however,
that neither the Company nor the Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the requirements
of this Section 3(c)(vi), (2) consent to general service of process
in any such jurisdiction or (3) make any changes to its certificate of
incorporation, by-laws or similar organizational document or any agreement
between it and its stockholders; 


 


(vii)                           use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange Registration, the
Subsequent Exchange Offer and


 


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the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;


 


(viii)                        provide a CUSIP number for each series of Exchange
Securities, not later than the applicable Effective Time; and


 


(ix)                                comply with all applicable rules and regulations of
the Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of such
Exchange Registration Statement, an earning statement of the Guarantor and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Guarantor, Rule 158 thereunder).


 


(d)               In connection with the obligations of the Company and the
Guarantor with respect to the Shelf Registration, if applicable, as
contemplated by Section 2(b) the Company and the Guarantor shall, as
soon as practicable (or as otherwise specified):


 


(i)                                     prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in Section 2(b),
a Shelf Registration Statement on any form which may be utilized by the Company
and which shall register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of disposition as may
be specified by such of the holders as, from time to time, may be Electing
Holders and use its commercially reasonable efforts to cause such Shelf Registration
Statement to become effective as soon as practicable but in any case within the
time periods specified in Section 2(b);


 


(ii)                                  not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and Questionnaire to
the holders of Registrable Securities; no holder shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the prospectus forming a
part thereof for resales of Registrable Securities at any time, unless such
holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided,
however, holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is first
mailed to such holders to return a completed and signed Notice and
Questionnaire to the Company;


 


(iii)                               after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities that is not
then an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Company shall not be
required to take any action to name such holder as a selling securityholder in
the Shelf Registration Statement or to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities until such holder
has returned a completed and signed Notice and Questionnaire to the Company;


 


(iv)                              subject to Section 3(i), as soon as practicable
prepare and file with the Commission such amendments and supplements to such
Shelf Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may
be required by the applicable rules and


 


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regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission;


 


(v)                                 comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered by such
Shelf Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf Registration
Statement;


 


(vi)                              provide (A) the Electing Holders and (B) not
more than one counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each amendment or
supplement thereto;


 


(vii)                           for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section 2(b),
make available at reasonable times at the Guarantor’s principal place of
business or such other reasonable place for inspection by the persons referred
to in Section 3(d)(vi) who shall certify to the Guarantor that they
have a current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books and records
of the Guarantor, and cause the executive officers, counsel and independent
certified public accountants of the Guarantor to respond to such inquiries, as
shall be reasonably necessary to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however,
that each such party shall agree in writing to maintain in confidence and not
to disclose to any other person any such information or records or the
responses to any such inquiries, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be required
to disclose such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter (subject
to the requirements of such order, and only after such person shall have given
the Guarantor prompt prior written notice of such requirement), or (C) such
information is set forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus;


 


(viii)                        promptly
notify each of the Electing Holders and confirm such advice in writing,
(A) when such Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of the
issuance by the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (C) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (D) if at any time when a
prospectus is required to be delivered under the Securities Act, that offers
and sales of Exchange Securities should be suspended as provided in
Section 3(i);


 


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(ix)                                use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest practicable
date;


 


(x)                                   if requested by any Electing Holder, promptly incorporate
in a prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such Electing Holder specifies should be included therein relating to the terms
of the sale of such Registrable Securities, including information with respect
to the principal amount of Registrable Securities being sold by such Electing
Holder, the name and description of such Electing Holder, the offering price of
such Registrable Securities and any discount, commission or other compensation
payable in respect thereof, and with respect to any other terms of the offering
of the Registrable Securities to be sold by such Electing Holder; and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;


 


(xi)                                furnish to each Electing Holder, if any, therefor, and
the counsel referred to in Section 3(d)(vi) a copy of such Shelf
Registration Statement, each such amendment and supplement thereto (including,
upon request, all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference therein unless
specifically so requested by such Electing Holder) and of the prospectus
included in such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder in order to
facilitate the offering and disposition of the Registrable Securities owned by
such Electing Holder, and to permit such Electing Holder to satisfy the
prospectus delivery requirements of the Securities Act; and the Company,
subject to Section 3(i), hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder in the form most recently
provided to such person by the Company, in connection with the offering and
sale of the Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment thereto;


 


(xii)                             use commercially reasonable efforts to (A) register
or qualify the Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such jurisdictions as
any Electing Holder shall reasonably request, (B) keep such registrations
or qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective under
Sections 2(b) and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing Holder to consummate
the disposition in such jurisdictions of such Registrable Securities during the
period the Shelf Registration is required to remain effective under Section 2(b);
provided, however, that neither  the Company nor the Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the requirements
of this Section 3(d)(xii), (2) consent to general service of process
in any


 


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such jurisdiction or (3) make any changes to its
certificate of incorporation, by-laws or similar organizational document or any
agreement between it and its stockholders;


 


(xiii)                          use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable
Securities;


 


(xiv)                         unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends, as
provided in the Indenture;


 


(xv)                            provide a CUSIP number for each series of Registrable
Securities, not later than the applicable Effective Time;


 


(xvi)                         (A) make such representations and warranties to any
Electing Holder in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any appropriate
agreement or to a registration statement filed on the form applicable to the
Shelf Registration; (B) obtain an opinion of counsel to the Company,
addressed to any Electing Holder that shall confirm that Section 11 of the
Securities Act provides that, in the event an action were to be brought against
any such person under Section 11 of the Securities Act with respect to
sales of Registrable Securities, such person would have available to it, among
other things, a due diligence defense under Section 11 of the Securities
Act, in customary form and covering such matters, of the type customarily
covered by such an opinion, as such person may reasonably request, dated the
effective date of such Shelf Registration Statement (it being agreed that the
matters to be covered by such opinion shall include the due authorization,
execution, authentication and issuance, and the validity and enforceability, of
the Securities; and the absence of governmental approvals required to be
obtained in connection with the Shelf Registration, the offering and sale of
the Registrable Securities, this Exchange and Registration Rights Agreement,
except such approvals as may be required under state securities or blue sky
laws; (C) obtain a letter from counsel to the Company, addressed to any
Electing Holder that shall confirm that Section 11 of the Securities Act
provides that, in the event an action were to be brought against any such
person under Section 11 of the Securities Act with respect to sales of
Registrable Securities, such person would have available to it, among other
things, a due diligence defense under Section 11 of the Securities Act, to
the effect that such Shelf Registration Statement appears on its face to comply
as to form with the rules and regulations of the Commission relating to
registration statements on such form, and, as of the date of the opinion, the
absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented (in each case other than the financial
statements and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a material fact
necessary to make the statements therein not misleading (in the case of any
such prospectus, in the light of the circumstances existing at the time)); (D) obtain
a “cold comfort” letter or letters from the independent certified public
accountants of the Company


 


11

















 


addressed to any Electing Holder that shall confirm that Section 11
of the Securities Act provides that, in the event an action were to be brought
against any such person under Section 11 of the Securities Act with
respect to sales of Registrable Securities, such person would have available to
it, among other things, a due diligence defense under Section 11 of the
Securities Act, dated (i) the effective date of such Shelf Registration
Statement and (ii) the effective date of any prospectus supplement to the
prospectus included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to that of
the latest such statements included in such prospectus, such letter or letters
to be in customary form and covering such matters of the type customarily
covered by letters of such type; (E) deliver such documents and
certificates, including officers’ certificates, as may be reasonably requested
by any Electing Holder that shall confirm that Section 11 of the
Securities Act provides that, in the event an action were to be brought against
any such person under Section 11 of the Securities Act with respect to
sales of Registrable Securities, such person would have available to it, among
other things, a due diligence defense under Section 11 of the Securities
Act, to evidence the accuracy of the representations and warranties made
pursuant to clause (A) above or those contained in Section 5(a) hereof
and the compliance with or satisfaction of any agreements or conditions
contained in any agreement entered into by the Company or the Guarantor; and (F) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;


 


(xvii)                      notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this Exchange
and Registration Rights Agreement pursuant to Section 8(h) hereof and
of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as the
case may be; and


 


(xviii)                   comply with all applicable rules and regulations of
the Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the effective
date of such Shelf Registration Statement, an earning statement of the
Guarantor and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Guarantor, Rule 158
thereunder).


 


(e)                                  In the event that the Company, pursuant to Section 3(i) below,
has notified the Electing Holders that offers and sales of Exchange Securities
have been suspended, the Company, as soon as commercially practicable, will
notify such persons when offers and sales of Exchange Securities may be made.


 


(f)                                    In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder’s intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such Electing
Holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration contains or
would contain an untrue statement of a material fact regarding such Electing
Holder or such Electing Holder’s intended method of disposition of such


 


12

















 


Registrable Securities or omits to state any material
fact regarding such Electing Holder or such Electing Holder’s intended method
of disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Electing Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing.


 


(g)                                 Until the earlier to occur of the expiration of one year
after the Closing Date or the time that the Securities are freely resaleable
pursuant to Rule 144(d)(1)(ii), the Company will not, and will not permit
any of its “affiliates” (as defined in Rule 144) to, resell any of the
Securities that have been reacquired by any of them except pursuant to an
effective registration statement under the Securities Act.


 


(h)                                 The Company and the Guarantor, jointly and severally,
represent, warrant and covenant that it (including its agents and representatives)
will not prepare, make, use, authorize, approve or refer to any Free Writing
Prospectus.


 


(i)                                     The Company may suspend the availability of the Shelf
Registration Statement (a “Suspension Event”) by notifying the Electing Holders
that it is suspending the use of any Shelf Registration Statement and that such
persons may not use such Shelf Registration Statement or any prospectus
included therein for offers and sales of Securities; provided
that, if such notice of a Suspension Event has been given to such persons, the
Company shall, as promptly as practicable following a determination that the
Suspension Event no longer exists and that such persons may recommence such
offers and sales, notify such persons of such determination. Each Electing
Holder agrees that upon receipt of any notice from the Company pursuant to this
Section 3(i), such person shall forthwith discontinue the disposition of
Securities until such person shall have been notified by the Company that
offers and sales of the Registrable Securities may recommence. If, following a
Suspension Event, in the Company’s judgment it is necessary to amend or
supplement the Shelf Registration Statement, the Company will prepare and
furnish to each Electing Holder, as requested, a reasonable number of copies of
a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act.


 


4.                                       Registration Expenses.


 


The Company and the
Guarantor, jointly and severally, agree to bear and to pay, or cause to be paid
promptly upon delivery of itemized invoices, all expenses incident to the
Company’s and the Guarantor’s performance of or compliance with this Exchange
and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses, (b) all fees and
expenses in connection with the qualification of the Securities for offering
and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof and determination of their eligibility for
investment under the laws of such jurisdictions as the Electing Holders may
designate, including any reasonable fees and disbursements of counsel for the
Electing Holders in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to


 


13

















 


the foregoing, the expenses
of preparing the Securities for delivery and the expenses of printing or
reproducing any selling agreements and blue sky or legal investment memoranda
and all other documents in connection with the offering, sale or delivery of
Securities to be disposed of (including certificates representing the Securities),
(d) messenger, telephone and delivery expenses relating to the offering,
sale or delivery of Securities and the preparation of documents referred in
clause (c) above, (e) fees and expenses of the Trustee hereunder or
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including
all salaries and expenses of the Company’s and the Guarantor’s officers and
employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of the
Company or the Guarantor (including the expenses of any opinions or “cold
comfort” letters required by or incident to such performance and compliance), (h) reasonable
fees, disbursements and expenses of one counsel for the Electing Holders
retained in connection with the Shelf Registration Statement, as selected by
the Electing Holders of at least a majority in aggregate principal amount of
the Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (i) any fees charged by
securities rating services for rating the Securities, and (j) fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company or the Guarantor in connection with such registration
(collectively, the “Registration Expenses”). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities, the Company and the Guarantor shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor and an itemized invoice with
respect thereto. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions
attributable to the sale of such Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.


 


5.                                       Representations and Warranties.


 


The Company and the
Guarantor, jointly and severally, represent and warrant to, and agree with,
each Purchaser and each of the holders from time to time of Registrable
Securities that:


 


(a)                                  Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and at all times subsequent to the Effective Time when a prospectus
would be required to be delivered under the Securities Act, other than from (i) such
time as a notice has been given to holders of Registrable Securities pursuant
to Section 3(i) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(c)(iv) hereof
or notifies the Electing Holders that offers and sales may recommence pursuant
to Section 3(i) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or furnished
pursuant to Section 3(e) or Section 3(c) hereof, as then
amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and


 


14

















 


the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein.


 


(b)                                 The compliance by the Company and the Guarantor with all
of the provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not contravene (i) any
provision of the applicable law or the certificate of incorporation or other
governing documents or the By-Laws of the Company or the Guarantor or (ii) any
agreement or other instrument binding upon the Company or the Guarantor, or (iii) any
judgment, order or decree of any governmental body, agency or body having
jurisdiction over the Guarantor or the Company; and no consent, approval,
authorization, order, registration or qualification of or with any governmental
agency or body is required to be obtained by the Company or the Guarantor for
the performance by the Company or the Guarantor of its obligations under this
Exchange and Registration Rights Agreement, except the registration under the
Securities Act of the Securities, qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under State securities or blue sky laws in
connection with the offering and distribution of the Securities.


 


(c)                                  This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and the Guarantor.


 


6.                                       Indemnification.


 


(a)                                  Indemnification by the Company
and the Guarantor.
The Company and the Guarantor, jointly and severally, will indemnify and hold
harmless each of the holders of Registrable Securities included in an Exchange
Registration Statement and each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement against any losses,
claims, damages or liabilities, joint or several, to which such holder may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such holder or
Electing Holder, or any amendment or supplement thereto, or any Free Writing Prospectus
or any “issuer information” (“Issuer Information”) filed or required to be
filed pursuant to Rule 433(d) under the Securities Act, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such holder or such Electing Holder
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the
Company nor the Guarantor shall be liable to any such person in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein.


 


15

















 


(b)                                 Indemnification by the Holders. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2(b) hereof,
that the Company shall have received an undertaking reasonably satisfactory to
it from the Electing Holder of such Registrable Securities, to (i) indemnify
and hold harmless the Company, the
Guarantor, and all other holders of Registrable Securities, against any losses,
claims, damages or liabilities to which the Company,
the Guarantor or such other holders of Registrable Securities may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such Electing
Holder, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished to
the Company by such Electing Holder expressly for use therein, and (ii) reimburse
the Company and the Guarantor for any legal or other expenses reasonably
incurred by the Company and the Guarantor in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 6(b) for
any amounts in excess of the dollar amount of the net proceeds to be received by
such Electing Holder from the sale of such Electing Holder’s Registrable
Securities pursuant to such registration.


 


(c)                                  Notices of Claims, Etc. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying
party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.


 


16

















 


(d)                                 Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified
party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 6(d) 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 this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or liabilities
(or actions in respect thereof) referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) 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 in this Section 6(d) to
contribute shall be several in proportion to the principal amount of
Registrable Securities registered by them and not joint.


 


(e)                                  The obligations of the Company and the Guarantor under
this Section 6 shall be in addition to any liability which the Company or
the Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder and each
person, if any, who controls any holder within the meaning of the Securities
Act; and the obligations of the holders contemplated by this Section 6
shall be in addition to any liability which the respective holder may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company or the Guarantor (including any person who, with his
consent, is named in any registration statement as about to become a director
of the Company or the Guarantor) and to each person, if any, who controls the
Company within the meaning of the Securities Act.


 


7.                                       Rule 144.


 


The Company covenants to
the holders of Registrable Securities that to the extent it shall be required
to do so under the Exchange Act, the Company shall use commercially reasonable
efforts to file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and


 


17

















 


the rules and
regulations adopted by the Commission thereunder, all to the extent required
from time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of Registrable
Securities in connection with that holder’s sale pursuant to Rule 144, the
Company shall deliver to such holder a written statement as to whether it has
complied with such requirements.


 


8.                                       Miscellaneous.


 


(a)                                  No Inconsistent Agreements. The Company represents, warrants, covenants and agrees
that it has not granted, and shall not grant, registration rights with respect
to Registrable Securities or any other securities which would be inconsistent
with the terms contained in this Exchange and Registration Rights Agreement.


 


(b)                                 Specific Performance. The parties hereto acknowledge that there would be no
adequate remedy at law if the Company fails to perform any of its obligations
hereunder and that the Purchasers and the holders from time to time of the
Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the Company under
this Exchange and Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights Agreement, in any court
of the United States or any State thereof having jurisdiction.


 


(c)                                  Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 17, Boulevard de la Grande Duchesse Charlotte, L-1331 Luxembourg, Attention:
Treasurer, and if to a holder, to the address of such holder set forth in the
security register or other records of the Company, or to such other address as
the Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.


 


(d)                                 Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed
a beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by, all of the applicable terms and
provisions of this Exchange and Registration Rights Agreement. If the Company
shall so request, any such successor, assignee or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all of the
applicable terms hereof.


 


(e)                                  Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made


 


18

















 


pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made
by or on behalf of any holder of Registrable Securities, any director, officer
or partner of such holder, or any controlling person of any of the foregoing,
and shall survive delivery of and payment for the Registrable Securities
pursuant to the Registered Exchange Offer and the transfer and registration of
Registrable Securities by such holder and the consummation of the Subsequent
Exchange Offer.


 


(f)                                    Governing Law. This Exchange and Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York.


 


(g)                                 Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.


 


(h)                                 Entire Agreement; Amendments. This Exchange and Registration Rights Agreement and the
other writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Exchange
and Registration Rights Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement may be amended and the observance of
any term of this Exchange and Registration Rights Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and
the holders of at least a majority in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 8(h), whether or not any
notice, writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.


 


(i)                                     Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on
any business day by any holder of Registrable Securities for proper purposes
only (which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Indenture and this Agreement)
at the offices of the Company at the address thereof set forth in Section 8(c) above
and at the office of the Trustee under the Indenture.


 


(j)                                     Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.


 


19

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  Tyco
  International Finance S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Peter Schieser

  
	
   

  	
   

  	
  Name: Peter
  Schieser

  
	
   

  	
   

  	
  Title:   Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tyco International
  Ltd.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Christopher J. Coughlin

  
	
   

  	
   

  	
  Name: Christopher
  J. Coughlin

  
	
   

  	
   

  	
  Title:   Executive
  Vice President and

  Chief Financial Officer

  
					



 


20
















 


Exhibit A


 


Tyco
International Finance S.A.


 


INSTRUCTION
TO DTC PARTICIPANTS


 


(Date of
Mailing)


 


URGENT -
IMMEDIATE ATTENTION REQUESTED


 


DEADLINE FOR RESPONSE:  [DATE]  *


 


The
Depository Trust Company (“DTC”) has identified you as a DTC Participant
through which beneficial interests in Tyco International Finance S.A.’s (the “Company”)
$421,961,000
7.0% Notes due 2019 and $707,404,000 6.875% Notes due 2021 (together, the “Securities”) are held.


 


The
Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.


 


It
is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities included in the
registration statement depend upon their returning the Notice and Questionnaire
by [Deadline For Response]. Please forward
a copy of the enclosed documents to each beneficial owner that holds interests
in the Securities through you. If you require more copies of the enclosed
materials or have any questions pertaining to this matter, please contact:  Tyco International Finance S.A., 17,
Boulevard de la Grande Duchesse Charlotte, L-1331 Luxembourg(Telephone:  (352) 464-340-1).


 






*
Not less than 28 calendar days from date of mailing.


 


A-1

















 


Tyco
International Finance S.A.


 


Notice
of Registration Statement

and

Selling Securityholder Questionnaire


 


(Date)


 


Reference
is hereby made to the Exchange and Registration Rights Agreement (the “Exchange
and Registration Rights Agreement”) among Tyco International Finance S.A. (the “Company”),
Tyco International Ltd. and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the “Commission”) a
registration statement on Form [    ]
(the “Shelf Registration Statement”) for the registration and resale under Rule 415
of the Securities Act of 1933, as amended (the “Securities Act”), of the
Company’s $421,961,000 7.0% Notes due 2019 and $707,404,000 6.875%
Notes due 2021 (together,
the “Securities”). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.


 


Each
beneficial owner of Registrable Securities (as defined below) is entitled to
have the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire (“Notice and Questionnaire”) must be completed,
executed and delivered to the Company’s counsel at the address set forth herein
for receipt ON OR BEFORE [Deadline for Response].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may
not use the Prospectus forming a part thereof for resales of Registrable
Securities.


 


Certain
legal consequences arise from being named as a selling securityholder in the
Shelf Registration Statement and related Prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and related
Prospectus.


 


The
term “Registrable Securities” is defined in the Exchange and
Registration Rights Agreement.


 


A-2

















 


ELECTION


 


The
undersigned holder (the “Selling Securityholder”) of Registrable Securities hereby
elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange
and Registration Rights Agreement, as if the undersigned Selling Securityholder
were an original party thereto.


 


Upon
any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the
Company and Trustee the Notice of Transfer set forth as Exhibit B to the
Exchange and Registration Rights Agreement.


 


The
Selling Securityholder hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:


 


A-3

















 


QUESTIONNAIRE


 


	
  (1)

  	
   

  	
  (a)

  	
   

  	
  Full
  Legal Name of Selling Securityholder:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Full
  Legal Name of Registered Holder (if not the same as in (a) above) of
  Registrable Securities Listed in Item (3) below:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Full
  Legal Name of DTC Participant (if applicable and if not the same as
  (b) above) Through Which Registrable Securities Listed in Item
  (3) below are Held:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
   

  	
   

  	
  Address
  for Notices to Selling Securityholder:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
   

  	
   

  	
  Fax:

  
	
   

  	
   

  	
   

  	
   

  	
  Contact
  Person:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
   

  	
   

  	
  Beneficial
  Ownership of Securities:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Except as
  set forth below in this Item (3), the undersigned does not beneficially
  own any Securities.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Principal
  amount of Registrable Securities beneficially owned:

  
	
   

  	
   

  	
   

  	
   

  	
  CUSIP
  No(s). of such Registrable Securities:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Principal
  amount of Securities other than Registrable Securities beneficially owned:

  
	
   

  	
   

  	
   

  	
   

  	
  CUSIP
  No(s). of such other Securities:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Principal
  amount of Registrable Securities which the undersigned wishes to be included
  in the Shelf Registration Statement: 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  CUSIP
  No(s). of such Registrable Securities to be included in the Shelf
  Registration Statement:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
   

  	
   

  	
  Beneficial
  Ownership of Other Securities of the Company:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Except as
  set forth below in this Item (4), the undersigned Selling Securityholder
  is not the beneficial or registered owner of any other securities of the
  Company, other than the Securities listed above in Item (3).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  State
  any exceptions here:

  



 


A-4

















 


	
  (5)

  	
   

  	
   

  	
   

  	
  Relationships
  with the Company:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Except as
  set forth below, neither the Selling Securityholder nor any of its
  affiliates, officers, directors or principal equity holders (5% or more) has
  held any position or office or has had any other material relationship with
  the Company (or its predecessors or affiliates) during the past three years.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  State
  any exceptions here:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (6)

  	
   

  	
   

  	
   

  	
  Plan
  of Distribution:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Except as set
  forth below, the undersigned Selling Securityholder intends to distribute the
  Registrable Securities listed above in Item (3) only as follows (if at
  all):  Such Registrable Securities may
  be sold from time to time directly by the undersigned Selling Securityholder.
  Such Registrable Securities may be sold in one or more transactions at fixed
  prices, at prevailing market prices at the time of sale, at varying prices
  determined at the time of sale, or at negotiated prices. Such sales may be
  effected in transactions (which may involve crosses or block transactions)
  (i) on any national securities exchange or quotation service on which
  the Registered Securities may be listed or quoted at the time of sale,
  (ii) in the over-the-counter market, (iii) in transactions
  otherwise than on such exchanges or services or in the over-the-counter
  market, or (iv) through the writing of options. In connection with sales
  of the Registrable Securities or otherwise, the Selling Securityholder may
  enter into hedging transactions with broker-dealers, which may in turn engage
  in short sales of the Registrable Securities in the course of hedging the
  positions they assume. The Selling Securityholder may also sell Registrable
  Securities short and deliver Registrable Securities to close out such short
  positions, or loan or pledge Registrable Securities to broker-dealers that in
  turn may sell such securities.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  State
  any exceptions here:

  



 


By
signing below, the Selling Securityholder acknowledges that it understands its
obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.


 


In
the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its
rights and obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.


 


By
signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.


 


In
accordance with the Selling Securityholder’s obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which 


 


A-5

















 


may
occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:


 


(i)             To the Company and the Guarantor:


 


	
   

  	
  Tyco
  International Finance S.A.

  
	
   

  	
  17,
  Boulevard de la Grande Duchesse

  Charlotte

  
	
   

  	
  L-1331
  Luxembourg

  
	
   

  	
  Telephone:
  (352) 464-340-1

  
	
   

  	
   

  



(ii)          With a copy to:


 


	
   

  	
  Steven
  R. Finley

  
	
   

  	
  Gibson,
  Dunn & Crutcher LLP

  
	
   

  	
  200
  Park Avenue

  
	
   

  	
  New
  York, New York 10166-0193

  
	
   

  	
  Telephone:
  (212) 351-4000

  
	
   

  	
  Fax:
  (212) 351-4035

  



 


Once
this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company’s counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.


 


A-6

















 


IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by
its duly authorized agent.


 


Dated:


 


 


	
   

  	
  Selling
  Securityholder

  
	
   

  	
  (Print/type
  full legal name of beneficial owner of Registrable Securities)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR
BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY’S
COUNSEL AT:


 


	
   

  	
  Steven
  R. Finley

  
	
   

  	
  Gibson,
  Dunn & Crutcher LLP

  
	
   

  	
  200
  Park Avenue

  
	
   

  	
  New
  York, New York 10166-0193

  
	
   

  	
  Telephone:
  (212) 351-4000

  
	
   

  	
  Fax:
  (212) 351-4035

  



 


A-7

















 


Exhibit B


 


NOTICE
OF TRANSFER PURSUANT TO REGISTRATION STATEMENT


 


[Address of
Trustee]


 


Attention:  Trust Officer


 


Re:                               Tyco International Finance S.A. (the “Company”)


$421,961,000 7.0% Notes due
2019 and $707,404,000 6.875% Notes due 2021


 


Dear
Sirs:


 


Please
be advised that                                                has
transferred $                                               aggregate
principal amount of the above-referenced Notes pursuant to an effective
Registration Statement on Form [        ] (File No. 333-        )
filed by the Company.


 


We
hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a “Selling Holder” in the
Prospectus dated [date] or in supplements thereto,
and that the aggregate principal amount of the Notes transferred are the Notes
listed in such Prospectus opposite such owner’s name.


 


Dated:


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  (Authorized Signature)

  



 


A-8