EXHIBIT 4.2


 


 


REGISTRATION RIGHTS AGREEMENT


 


Dated as of July 18, 2003


 


by and between


 


GRIFFON CORPORATION


 


and


 


DEUTSCHE BANK SECURITIES INC.,

as Representative of the Initial Purchasers


 


 


4.0% Contingent Convertible Subordinated
Notes Due 2023


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Shelf Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Liquidated Damages

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Registration Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Registration Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Rules 144 and 144A

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Underwritten Registrations

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Miscellaneous

  	
   

  



 


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REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (this “Agreement”) is dated
as of July 18, 2003, by and between Griffon Corporation, a Delaware
corporation (the “Company”), and Deutsche Bank Securities Inc., as
representative of the Initial Purchasers (collectively, the “Initial
Purchasers”) under the Purchase Agreement (as defined below).


 


This Agreement is entered into in connection with that certain Purchase
Agreement, dated July 15, 2003 (the “Purchase Agreement”), by and
between the Company and the Initial Purchasers, which provides for the sale by
the Company to the Initial Purchasers of $125,000,000 aggregate principal
amount of the Company’s 4.0% Contingent Convertible Subordinated Notes Due 2023
(the “Firm Notes”), plus up to an additional $25,000,000 aggregate
principal amount of the same which the Initial Purchasers may subsequently
elect to purchase pursuant to the terms of the Purchase Agreement (the “Option
Notes” and, together with the Firm Notes, the “Notes”), which are
convertible into common stock, par value $.25 per share, of the Company (the “Underlying
Shares”), together with the rights evidenced by such Common Stock to the
extent provided for in the Rights Agreement dated as of May 9, 1996
between the Company and American Stock Transfer & Trust Company, as Rights
Agent.  The Notes are being issued
pursuant to an Indenture dated as of the date hereof (the “Indenture”),
by and between the Company and American Stock Transfer and Trust Company,
a bank and trust company organized under the laws of the State of  New York, as Trustee.


 


In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and certain
subsequent holder or holders of the Notes or Underlying Shares as provided
herein.  The execution and delivery of
this Agreement is a condition to the Initial Purchasers’ obligation to purchase
the Firm Notes under the Purchase Agreement.


 


The parties hereto hereby agree as follows:


 


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


 


“Agreement”:  See the
first introductory paragraph hereto.


 


“Amendment Effectiveness Deadline Date”:  See Section 2(d)(i) hereof.


 


“Amount of Registrable Securities”: (a) With respect to Notes
constituting Registrable Securities, the aggregate principal amount of all such
Notes outstanding, (b) with respect to Underlying Shares constituting
Registrable Securities, the aggregate number of such Underlying Shares
outstanding multiplied by the Conversion Price (as defined in the Indenture
relating to the Notes upon the conversion of which such Underlying Shares were
issued) in effect at the time of computing the Amount of Registrable Securities
or, if no such Notes are then outstanding, the last Conversion Price that was
in effect under such Indenture when any such Notes were last outstanding, and
(c) with respect to combinations thereof, the sum of (a) and (b) for the
relevant Registrable Securities.


 

















 


“Business Day”:  Any day
that is not a Saturday, Sunday or a day on which banking institutions in New
York are authorized or required by law to be closed.


 


“Closing Date”: 
July 18, 2003.


 


“Company”:  See the first
introductory paragraph hereto.


 


“Controlling Person”: 
See Section 6 hereof.


 


“Damages Payment Date”: 
See Section 3(c) hereof.


 


“Deferral Period”:  See
Section 3(b) hereof.


 


“Depositary”:  The
Depository Trust Company until a successor is appointed by the Company.


 


“Designated Counsel”: 
One firm of counsel chosen by the Holders of a majority in Amount of
Registrable Securities to be included in a Registration Statement for a Shelf
Registration and identified to the Company in writing prior to the filing of
such Registration Statement.


 


“Effectiveness Date”: 
The 180th day after the Closing Date.


 


“Effectiveness Period”: 
See Section 2(a) hereof.


 


“Exchange Act”:  The
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC promulgated thereunder.


 


“Filing Date”:  The 90th
day after the Closing Date.


 


“Firm Notes”:  See the
second introductory paragraph hereto.


 


“Holder”:  Any holder of
Registrable Securities.


 


“Indemnified Holder”: 
See Section 6 hereof.


 


“Indemnified Person”: 
See Section 6 hereof.


 


“Indemnifying Person”: 
See Section 6 hereof.


 


“Indenture”:  See the
second introductory paragraph hereto.


 


“Initial Purchasers”: 
See the first introductory paragraph hereto.


 


“Initial Shelf Registration”: 
See Section 2(a) hereof.


 


“Inspectors”:  See
Section 4(k) hereof.


 


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“Liquidated Damages”: 
See Section 3(a) hereof.


 


“Notes”:  See the second
introductory paragraph hereto.


 


“Notice and Questionnaire”: means a written notice delivered to
the Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Appendix A to the
Offering Memorandum of the Company relating to the Notes.


 


“Option Notes”:  See the
second introductory paragraph hereto.


 


“Person”: An individual, partnership, corporation, limited
liability company, unincorporated association, trust or joint venture, or a
governmental agency or political subdivision thereof.


 


“Prospectus”: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or supplemented
by any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.


 


“Purchase Agreement”: 
See the second introductory paragraph hereto.


 


“Records”:  See
Section 4(k) hereof.


 


“Registrable Securities”: All Notes and all Underlying Shares
upon original issuance thereof and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement covering such Notes and
Underlying Shares having been declared effective by the SEC and such Notes and
Underlying Shares having been disposed of in accordance with such effective
Registration Statement, (ii) such Notes and Underlying Shares having been sold
in compliance with Rule 144 or could (except with respect to affiliates of the
Company within the meaning of the Securities Act) be sold in compliance with
Rule 144(k), or (iii) such Notes and any Underlying Shares ceasing to be outstanding.


 


“Registration Default”: 
See Section 3(a) hereof.


 


“Registration Statement”: Any registration statement of the
Company filed with the SEC pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all documents
incorporated by reference or deemed to be incorporated by reference in such
registration statement.


 


“Rule 144”: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith 


 


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resulting in
offers and sales by subsequent holders that are not affiliates of an issuer of
such securities being free of the registration and prospectus delivery
requirements of the Securities Act.


 


“Rule 144A”: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.


 


“Rule 415”: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.


 


“SEC”:  The Securities
and Exchange Commission.


 


“Securities Act”:  The
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.


 


“Selling Holder”: On any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.


 


“Shelf Registration”: 
See Section 2(b) hereof.


 


“Shelf Registration Statement”: 
See Section 2(b) hereof.


 


“Subsequent Shelf Registration”:  See Section 2(b) hereof.


 


“TIA”:  The Trust
Indenture Act of 1939, as amended, and the rules and regulations of the SEC
promulgated thereunder.


 


“Trustee”:  The Trustee
under the Indenture.


 


“Underlying Shares”:  See
the second introductory paragraph hereto.


 


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


 


2.                                       Shelf Registration.


 


(a)                                  Shelf
Registration.  The Company shall
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the “Initial Shelf Registration”) on or prior to the Filing
Date.


 


The Initial Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by
Holders in the manner or manners designated by them (excluding Underwritten
Offerings).  The Company shall not
permit any securities other than the Registrable Securities to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration (as defined
below).


 


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The Company shall use all reasonable efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep such Initial Shelf Registration continuously
effective under the Securities Act until the date that is two years after the
Closing Date, or if later, the date on which the Option Notes were issued,
(such period, as it may be shortened pursuant to clauses (i), (ii), (iii) or
(iv) immediately following, the “Effectiveness Period”), or such shorter
period ending when (i) all of the Registrable Securities covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated
in the Initial Shelf Registration, (ii) the date on which all the Registrable
Securities (x) held by Persons who are not affiliates of the Company may be
resold pursuant to Rule 144(k) under the Securities Act or (y) cease to be
outstanding, (iii) all the Registrable Securities have been resold pursuant to
Rule 144 under the Securities Act or (iv) a Subsequent Shelf Registration
covering all of the Registrable Securities has been declared effective under
the Securities Act.


 


(b)                                 Subsequent
Shelf Registrations.  If the Initial
Shelf Registration or any Subsequent Shelf Registration (as defined below)
ceases to be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the Registrable Securities registered
thereunder), the Company shall use all reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness amend the Initial Shelf
Registration in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional “shelf” Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a “Subsequent
Shelf Registration”).  If a
Subsequent Shelf Registration is filed, the Company shall use all reasonable
efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf
Registration was previously continuously effective.  As used herein, the term “Shelf Registration” means the
Initial Shelf Registration and any Subsequent Shelf Registration and the term “Shelf
Registration Statement” means any Registration Statement filed in
connection with a Shelf Registration.


 


(c)                                  Supplements
and Amendments.  The Company shall
promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of the majority in Amount of Registrable Securities
covered by such Registration Statement.


 


(d)                                 Notice
and Questionnaire.  Each Holder
agrees that if such Holder wishes to sell Registrable Securities pursuant to a
Shelf Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(d) and Section 4 hereof.  Each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a Notice and Questionnaire to the Company at least five (5)
Business Days prior to any intended distribution of Registrable Securities
under the Shelf Registration Statement. 
From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as practicable after the
date a Notice and Questionnaire is delivered, 


 


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and in any event upon the later of (x) five
(5) Business Days after such date or (y) five (5) Business Days after the
expiration of any Deferral Period in effect when the Notice and Questionnaire
is delivered:


 


(i)                                     if required by
applicable law, file with the SEC a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of the Registrable Securities (subject to the rights of the
Company under Section 3(b) to create a Deferral Period) in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement, use all reasonable efforts to cause such
post-effective amendment, if any, to be declared effective under the Securities
Act as promptly as is reasonably practicable, but in any event by the date (the
“Amendment Effectiveness Deadline Date”) that is forty-five (45) days
after the date such post-effective amendment is required by this clause to be
filed;


 


(ii)                                  provide such Holder
copies of any documents filed pursuant to Section 2(d)(i); and


 


(iii)                               notify such Holder as
promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i); provided that
if such Notice and Questionnaire is delivered during a Deferral Period (as
defined in Section 3(b)), the Company shall so inform the Holder delivering
such Notice and Questionnaire and shall take the actions set forth in clauses
(i), (ii) and (iii) above upon expiration of the Deferral Period.  Notwithstanding anything contained herein to
the contrary, (i) the Company shall be under no obligation to name any Holder
that has not delivered a Notice and Questionnaire to the Company in accordance
with this Section 2(d) and (ii) the Amendment Effectiveness Deadline Date
shall be extended by up to ten (10) Business Days from the expiration of a
Deferral Period (and the Company shall incur no obligation to pay Liquidated
Damages during such extension) if such Deferral Period shall be in effect on
the Amendment Effectiveness Deadline Date.


 


3.                                       Liquidated Damages.


 


(a)                                  The
Company and the Initial Purchasers agree that the Holders of Registrable
Securities will suffer damages if the Company fails to fulfill certain of its
obligations under Section 2 hereof 
and that it would not be feasible to ascertain the extent of such
damages with precision.  Accordingly,
the Company agrees to pay liquidated damages on the Registrable Securities (“Liquidated
Damages”) under the circumstances and to the extent set forth below 


 


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(each of which shall be given independent
effect; each a “Registration Default”). 
Liquidated Damages shall accrue:


 


(i)                                     if the Initial
Shelf Registration is not filed on or prior to the Filing Date, then commencing
on the day after the Filing Date;


 


(ii)                                  if a Shelf
Registration is not declared effective by the SEC on or prior to the
Effectiveness Date, then commencing on the day after the Effectiveness Date;
and


 


(iii)                               if a Shelf Registration
has been declared effective and such Shelf Registration ceases to be effective
at any time during the Effectiveness Period (other than as permitted under
Section 3(b)), then commencing on the day after the date such Shelf
Registration ceases to be effective.


 


provided,
however, that Liquidated Damages on the Registrable Securities may not accrue
under more than one of the foregoing clauses (i), (ii) and (iii) at any one
time; and provided
further, however, that (1) upon the filing of the Initial Shelf
Registration as required hereunder (in the case of clause (a)(i) of this
Section 3), (2) upon the effectiveness of a Shelf Registration as required
hereunder (in the case of clause (a)(ii) of this Section 3), (3) upon the
effectiveness of a Shelf Registration which had ceased to remain effective (in
the case of clause (a)(iii) of this Section 3), Liquidated Damages on the
Registrable Securities as a result of such clause (or the relevant subclause
thereof, as the case may be), shall cease to accrue.  It is understood and agreed that, notwithstanding any provision to the contrary, (1) no Liquidated Damages
shall accrue on any Registrable Securities that are then covered by an
effective Shelf Registration Statement and (2) the right to receive
Liquidated Damages shall be the sole and exclusive remedy to the Holders of the
Registrable Securities for breach by the Company of its registration
obligations.


 


(b)                                 Notwithstanding
paragraph (a) of this Section 3, the Company, upon written notice to the
Holders, shall be permitted to suspend the effectiveness of a Registration
Statement covering the Registrable Securities for any bona fide reason whatsoever
for up to 45 consecutive days (the “Deferral Period”) in any 90-day
period without paying Liquidated Damages; provided, however, that in the event
the disclosure relates to a previously undisclosed proposed or pending material
business transaction, the disclosure of which the Company determines in good
faith would be reasonably likely to impede the Company’s ability to consummate
such transaction, the Company may extend a Deferral Period from 45 days to 60
days without paying Liquidated Damages; provided further, however, that
Deferral Periods may not total more than 90 days in the aggregate in any
twelve-month period.  The Company shall
not be required to specify in the written notice to the Holders the nature of
the event giving rise to the Deferral Period.


 


(c)                                  So
long as Notes remain outstanding, the Company shall notify the Trustee within
five Business Days after each and every date on which an event occurs in
respect of which Liquidated Damages are required to be paid.  Any amounts of Liquidated Damages due
pursuant to clause (a)(i), (a)(ii) or (a)(iii) of this Section 3 will be
payable at a rate of 0.50% per annum on the Amount of Registrable Securities in
cash semi-annually on each January 18
and July 18 (each, a “Damages Payment Date”), commencing
with the first such date occurring after 


 


7

















 


any such Liquidated Damages commences to
accrue, to Holders to whom regular interest is payable on such Damages Payment
Date, with respect to Notes that are Registrable Securities, and to Persons
that are registered Holders on January 1 or July 1 immediately prior
to a Damages Payment Date with respect to Underlying Shares that are
Registrable Securities, provided
that any Liquidated Damages accrued with respect to any Note or portion thereof
redeemed by the Company on a redemption date or converted into Underlying
Shares on a conversion date prior to the Damages Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Note or portion
thereof for redemption or conversion on the applicable redemption date or
conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). 
The amount of Liquidated Damages for Registrable Securities will be
determined by multiplying the applicable rate of Liquidated Damages by the
Amount of Registrable Securities outstanding on the Damages Payment Date
following such Registration Default in the case of the first such payment of
Liquidated Damages with respect to a Registration Default (and thereafter at
the next succeeding Damages Payment Date until the cure of such Registration
Default), multiplied by a fraction, the numerator of which is the number of
days such Liquidated Damages rate was applicable during such period (determined
on the basis of a 360-day year comprised of twelve 30-day months and, in the
case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.


 


4.                                       Registration Procedures.


 


In connection with the filing of any Registration Statement pursuant to
Section 2 hereof, the Company shall effect such registration to permit the
resale of the securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
any Registration Statement filed by the Company hereunder the Company shall:


 


(a)                                  Prepare
and file with the SEC, on or prior to the Filing Date, a Registration Statement
or Registration Statements as prescribed by Section 2 hereof, and use all
reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein.


 


(b)                                 Prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period; cause the related
Prospectus to be supplemented by any prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all Registrable Securities
covered by such Registration Statement as so amended or in such Prospectus as
so supplemented.  The Company shall be
deemed not to have used all reasonable efforts to keep a Registration Statement
effective during the Effectiveness Period if it voluntarily takes any action
that would result in Selling Holders of the Registrable Securities covered
thereby not being able to sell such Registrable Securities during that period
unless such action is required by applicable law or unless the Company complies
with this Agreement, including without limitation the provisions of
Section 4(i) hereof.


 


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(c)                                  Notify
the Selling Holders and Designated Counsel, if any, promptly (but in any event
within two Business Days), (i) when a Prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Company, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) of the happening of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and (iv) of the
Company’s determination that a post-effective amendment to a Registration
Statement would be appropriate.


 


(d)                                 Use
all reasonable efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus and, if any such order is issued, to use all
reasonable efforts to obtain the withdrawal of any such order at the earliest
possible moment, and provide, as promptly as practicable, notice to the Selling
Holders of the withdrawal of any such order.


 


(e)                                  Furnish
to each Selling Holder and Designated Counsel, if any, at the sole expense of
the Company, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.


 


(f)                                    Deliver
to each Selling Holder and Designated Counsel, if any, at the sole expense of
the Company, as many copies of the Prospectus and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to Section 4A(a) and (c) hereof, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the Selling Holders of Registrable Securities and
dealers, if any, in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement thereto.


 


(g)                                 Cause
the Company’s counsel to perform Blue Sky law investigations and file
registrations and qualifications required to be filed in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities 


 


9

















 


or offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any Selling
Holder reasonably requests, keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable under Blue Sky laws to enable the disposition
in such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified, (ii) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(iii) subject itself to taxation in any such jurisdiction where it is not then
so subject.


 


(h)                                 Cooperate
with the Selling Holders and their respective counsel to facilitate the timely
preparation and delivery of certificates representing shares of Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository Trust Company;
and enable such shares of Registrable Securities to be in such denominations
and registered in such names as the Selling Holders may reasonably request.


 


(i)                                     Upon
the occurrence of any event contemplated by Section 4(c)(ii), 4(c)(iii) or
4(c)(iv) hereof, as promptly as practicable prepare and (subject to
Section 4(a) hereof) file with the SEC, at the sole expense of the
Company, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, any such Prospectus 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, in the light of the
circumstances under which they were made, not misleading.


 


(j)                                     Prior
to the effective date of the first Registration Statement relating to the
Registrable Securities, (i) provide the Trustee with certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Securities.


 


(k)                                  During
the Effectiveness Period, make available at reasonable times for inspection by
one or more representatives of the Selling Holders, designated in writing by
Holders of a majority in Amount of Registrable Securities to be included in
such Registration Statement of such Registrable Securities being sold, and any
attorney or accountant retained by any such Selling Holders (collectively, the
“Inspectors”), at the offices where normally kept, during reasonable
business hours, at such time or times as shall be mutually convenient for the
Company and the Inspectors as a group, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the “Records”) as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement; provided,
however, that the Company shall have no obligation to provide any such
information prior to the execution by the party receiving such information of 


 


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a confidentiality agreement in a form
reasonably acceptable to the Company. 
Records that the Company determines, in good faith, to be confidential
and any Records that it notifies the Inspectors are confidential shall not be
disclosed by any Inspector unless (i) the disclosure of such Records is
necessary to avoid or correct a material misstatement or material omission in
such Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(iii) disclosure of such information is, in the opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the information
in such Records has been made generally available to the public other than
through the acts of such Inspector; provided, however, that prior notice shall
be provided as soon as practicable to the Company of the potential disclosure
of any information by such Inspector pursuant to clauses (ii) or (iii) of this
sentence to permit the Company to obtain a protective order (or waive the
provisions of this paragraph (k)).  Each
Inspector shall take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such actions
are otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of the Holder or any Inspector, unless and until such
information in such Records has been made generally available to the public
other than as a result of a breach of this Agreement.


 


(l)                                     Provide
(i) the Holders of the Registrable Securities to be included in such
Registration Statement and Designated Counsel, if any, (ii) the sales or
placement agent, if any, thereof, and (iii) one counsel for such agents,
reasonable opportunity to participate in the preparation of such Registration
Statement, each prospectus included therein or filed with the SEC, and each
amendment or supplement thereto.


 


(m)                               During
the Effectiveness Period, comply with all applicable rules and regulations of
the SEC and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Company after the effective date
of a Registration Statement, which statements shall cover said 12-month periods.


 


(n)                                 Cause
the Indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement relating to the Registrable Securities; and
in connection therewith, cooperate with the Trustee and the Holders of the
Registrable Securities and their respective counsel to effect such changes to
the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use all reasonable
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner.


 


(o)                                 Use
all reasonable efforts to cause the Registrable Securities covered by any Shelf
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable
the Selling Holder or Holders 


 


11

















 


thereof to consummate the disposition of such
Registrable Securities, except as may be required solely as a consequence of
the nature of such selling Holder’s business, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.


 


(p)                                 If
requested by Designated Counsel, if any, or the Holders of the majority in
Amount of Registrable Securities (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the Designated
Counsel, if any, or such Holders reasonably determine is necessary to be
included therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment and (iii) supplement or make
amendments to such Registration Statement.


 


(q)                                 Use
all reasonable efforts to take all other steps necessary or advisable to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.


 


4A.                             Holders’ Obligations. (a) Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(d)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence.  Each Selling Holder agrees promptly to
furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Selling Holder
not misleading and any other information regarding such Selling Holder and the
distribution of such Registrable Securities as the Company may from time to
time reasonably request.  Any sale of
any Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
or provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating
to or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading.


 


(b)                                 The Company may require each Selling Holder of
Registrable Securities as to which any registration is being effected to
furnish to the Company such additional information regarding such Holder and
its plan of distribution of such Registrable Securities as the Company may,
from time to time, reasonably request to the extent necessary or advisable to
comply with the Securities Act.  The
Company may exclude from such registration the Registrable Securities of any
Selling Holder if such Holder fails to furnish such additional information
within 20 Business Days after receiving such request.  Each Selling Holder as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed so that the information previously furnished to the Company


 


12

















 


by such Holder is not
materially misleading and does not omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made.


 


(c)                                  Each Holder of Registrable Securities agrees
by acquisition of such Registrable Securities that, upon actual receipt of any
notice from the Company of the Company suspending the effectiveness of the
Registration Statement pursuant to Section 3(b) hereof, or upon the
happening of any event of the kind described in Section 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(i) hereof, or
until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto.  Each Holder agrees
to keep any such notice confidential.


 


5.                                       Registration Expenses.


 


(a)                                  All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company, including, without
limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses of compliance with state securities or Blue Sky
laws, including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable
Securities and determination of the eligibility of the Registrable Securities
for investment under the laws of such jurisdictions as provided in
Section 4(g) hereof), (ii) printing expenses, including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Holders of the
majority in Amount of Registrable Securities included in any Registration
Statement, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company desires such insurance, (vi) fees and expenses of all
other Persons retained by the Company, (vii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and employees
of the Company performing legal or accounting duties), (viii) the expense of
any annual audit, (ix) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, if
applicable, and (x) the expenses relating to printing, word processing and
distributing all Registration Statements and any other documents necessary in
order to comply with this Agreement. 
Notwithstanding anything in this Agreement to the contrary, each Holder
shall pay all brokerage commissions with respect to any Registrable Securities
sold by it and, except as set forth in Section 5(b) below the Company
shall not be responsible for the fees and expenses of any counsel, accountant
or advisor for the Holders.


 


(b)                                 The
Company shall reimburse the Holders of the Registrable Securities being
registered in a Shelf Registration for the reasonable fees and disbursements,
of Designated Counsel.


 


13

















 


6.                                       Indemnification.


 


The
Company agrees to indemnify and hold harmless (a) each Holder (which, for the
absence of doubt, for purposes of this Section 6 shall include the Initial
Purchasers), (b) each Person, if any, who controls (within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act) any Holder (any of the Persons referred to in this clause (b) being
hereinafter referred to as a “Controlling Person”), (c) the respective
officers, directors, partners, employees, representatives and agents of any
Holder (including any predecessor holder) or any Controlling Person (any person
referred to in clause (a), (b) or (c) may hereinafter be referred to as an “Indemnified
Holder”), against any losses, claims, damages or liabilities to which such
Indemnified Holder may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related prospectus or (ii) 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 the light of the circumstances in which
they were made; provided, however, that the Company will not be liable under
this paragraph, (x) 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 any such Registration
Statement or Prospectus, or any amendment or supplement thereto or any related
prospectus in reliance upon and in conformity with written information relating
to any Holder furnished to the Company by or on behalf of such Holder
specifically for use therein or (y) with respect to any untrue statement or
alleged untrue statement, or omission or alleged omission made in any former
prospectus if the person asserting any such loss, claim, damage or liability
who purchased Registrable Securities which are the subject thereof did not
receive a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis) at or prior to the written confirmation
of the sale of such Registrable Securities to such person and, in any case
where such delivery is required by applicable law and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
made in such former prospectus was corrected in the Prospectus (as then amended
or supplemented if the Company shall have furnished such Indemnified Holder
with such amendment or supplement thereto on a timely basis).  The Company shall notify such Indemnified
Holder promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement that involves the
Company or such Indemnified Holder.


 


The
Company agrees to reimburse each Indemnified Holder upon demand for any legal
or other out-of-pocket expenses reasonably incurred by such Indemnified Holder
in connection with investigating or defending any such loss, claim, damage or
liability, any action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Registrable Securities,
whether or not such Indemnified Holder is a party to any action or proceeding; provided,
however, that the Company will not be liable under this paragraph, (x) 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 any such 


 


14

















 


Registration
Statement or Prospectus, or any amendment or supplement thereto or any related
prospectus in reliance upon and in conformity with written information relating
to any Holder furnished to the Company by or on behalf of such Holder
specifically for use therein or (y) with respect to any untrue statement or
alleged untrue statement, or omission or alleged omission made in any former prospectus
if the person asserting any such loss, claim, damage or liability who purchased
Registrable Securities which are the subject thereof did not receive a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished such Indemnified Holder with such amendment or supplement thereto on
a timely basis) at or prior to the written confirmation of the sale of such
Registrable Securities to such person and, in any case where such delivery is
required by applicable law and the untrue statement or alleged untrue statement
or omission or alleged omission of a material fact made in such former
prospectus was corrected in the Prospectus (as then amended or supplemented if
the Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis).  In the event that it is finally judicially
determined that an Indemnified Holder was not entitled to receive payments for
legal and other expenses pursuant to this Section 6, such Indemnified
Holder will promptly return all sums that had been advanced pursuant hereto.


 


Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors and officers and each Person who controls the Company
(within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as the indemnity
provided in the first paragraph of this Section 6 from the Company to each
Holder, but only with reference to such losses, claims, damages or liabilities
which are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to a Holder furnished to the Company in writing by such Holder
expressly for use in any Registration Statement or Prospectus, or any amendment
or supplement thereto or any related preliminary prospectus.  The liability of any Holder under this
paragraph shall in no event exceed the proceeds received by such Holder from
sales of Registrable Securities giving rise to such obligation.


 


In
case any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to either of the first and
third paragraphs of this Section 6, such Person (the “Indemnified
Person”) shall promptly notify the Person or Persons against whom such
indemnity may be sought (each an “Indemnifying Person”) in writing.  No indemnification provided for in the first
or third paragraphs of this Section 6 shall be available to any Person who
shall have failed to give notice as provided in this paragraph if the party to
whom notice was not given was unaware of the proceeding to which such notice would
have related and was materially prejudiced by the failure to give such
notice.  Nevertheless, the failure to
give such notice shall not relieve the Indemnifying Person or Persons from any
liability which it or they may have to the Indemnified Person for contribution
or otherwise than on account of the provisions of the first and third
paragraphs of this Section 6.  In
case any such proceeding shall be brought against any Indemnified Person and it
shall notify the Indemnifying Person of the commencement thereof, the
Indemnifying Person shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other Indemnifying Person similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to such Indemnified Person and shall pay as incurred (or within 30 days of
presentation) the fees and disbursements of such 


 


15

















 


counsel related to such
proceeding.  In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel at its own
expense.  Notwithstanding the foregoing,
the Indemnifying Person shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the Indemnified
Person in the event (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the retention of such counsel, (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the Indemnifying Person shall have
failed to assume the defense and employ counsel reasonably acceptable to the
Indemnified Person within a reasonable period of time after notice of
commencement of the action.  It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
Indemnified Persons.  Such firm shall be
designated in writing by Holders of a majority in Amount of Registrable
Securities in the case of parties indemnified pursuant to the first paragraph
of this Section 6 and by the Company in the case of parties indemnified
pursuant to the third paragraph of this Section 6.  The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify the Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.  In addition, the Indemnifying Person will
not, without the prior written consent of the Indemnified Person, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding of which indemnification may be sought hereunder (whether
or not any Indemnified Person is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Person from all liability arising out
of such claim, action or proceeding.


 


To
the extent the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnified Person under the
first or third paragraph of this Section 6 in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, except by reason of the exceptions set forth in the first
or third paragraphs of this Section 6 or the failure of the Indemnified
Person to give notice as required in the fourth paragraph of this
Section 6, then each Indemnifying Person shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Indemnifying Person on the one hand and the Indemnified Person on the other
hand from the offering of the Notes pursuant to the Purchase Agreement and the
Registrable Securities pursuant to any Shelf Registration.  If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law then each
Indemnifying Person shall contribute to such amount paid or payable by such
Indemnified Person in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Indemnifying Person
on the one hand and the Indemnified Person on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. 
The relative benefits received by the Company shall be deemed to be
equal to the total net proceeds (before deducting expenses) received by the 


 


16

















 


Company under the Purchase
Agreement from the offering and sale of the Registrable Securities giving rise
to such obligations.  The relative
benefits received by any Holder shall be deemed to be equal to the value of
receiving registration rights for the Registrable Securities under this
Agreement.  The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or such Indemnified Holder on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.


 


The
Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to the immediately preceding paragraph of
this Section 6 were determined by pro rata allocation 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
Person as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to in the immediately preceding
paragraph shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Person in connection with investigating or defending
any such action or claim or enforcing any rights hereunder.  Notwithstanding the provisions of this
paragraph and the immediately preceding paragraph of this Section 6, (i)
in no event shall any Holder be required to contribute any amount in excess of
the amount by which the net proceeds received by such Holder from the offering
or sale of the Registrable Securities pursuant to a Shelf Registration
Statement exceeds the amount of damages which such Holder would have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) 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.


 


Except
as otherwise provided in this Section 6, any losses, claims, damages,
liabilities or expenses for which an Indemnified Person is entitled to
indemnification or contribution under this Section 6 shall be paid by the
Indemnifying Person to the Indemnified Person as such losses, claims, damages,
liabilities or expenses are incurred (or within 30 days of presentation).


 


The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies that may otherwise be available to any indemnified
party at law or in equity.


 


The
indemnity and contribution agreements contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any Person controlling any Holder or by or on behalf of the Company, its
officers or directors or any other Person controlling the Company and (iii)
acceptance of and payment for any of the Registrable Securities.


 


7.                                       Rules 144 and 144A.


 


The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC 


 


17

















 


thereunder in
a timely manner in accordance with the requirements of the Securities Act and
the Exchange Act and, for so long as any Registrable Securities remain
outstanding, if at any time the Company is not required to file such reports,
it will, upon the request of any Holder or beneficial owner of Registrable
Securities, make available such information necessary to permit sales pursuant
to Rule 144A under the Securities Act. 
The Company further covenants that, for so long as any Registrable
Securities remain outstanding, it will use all reasonable efforts to take such
further action as any Holder of Registrable Securities may reasonably request,
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 limitation
of the exemptions provided by (a) Rule 144 and Rule 144A under the Securities
Act, as such rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. 
The Company will provide a copy of this Agreement to prospective
purchasers of Registrable Securities identified to the Company by the Initial
Purchasers upon request.  Upon the
request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.  Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.


 


8.                                       Underwritten Registrations.


 


No
Holder of Registrable Securities may participate in any Underwritten
Registration hereunder.


 


9.                                       Miscellaneous.


 


(a)                                  No
Inconsistent Agreements.  The
Company has not, as of the date hereof, and the Company shall not, after the
date of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.


 


(b)                                 Adjustments
Affecting Registrable Securities. 
The Company shall not, directly or indirectly, take any action with
respect to the Registrable Securities as a class that would adversely affect
the ability of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement.


 


(c)                                  Amendments
and Waivers.  The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of the Company and the Holders of not less than the
majority in Amount of Registrable Securities; provided, however, that
Section 6 and this Section 9(c) may not be amended, modified or
supplemented without the prior written consent of the Company and each Holder
(including, in the case of an amendment, modification or supplement of
Section 6, any Person who was a Holder of Registrable Securities disposed
of pursuant to any Registration Statement). 
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a


 


18

















 


majority in principal amount of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement.


 


(d)                                 Notices.  All notices and other communications
(including without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:


 


(1)                                  if to a Holder of
Registrable Securities, at the most current address of such Holder set forth on
the records of the registrar under the Indenture, in the case of Holders of
Notes, and the stock ledger of the Company, in the case of Holders of common
stock of the Company, unless, in either such case, any Holder shall have
provided notice information in a Notice and Questionnaire or any amendment
thereto, in which case such information shall control.


 


(2)                                  if to the Initial
Purchasers:


 


c/o Deutsche
Bank Securities Inc.

31 West 52nd Street

New York, New York 10019

Facsimile No.:  (212) 469-3665

Attention:  General Counsel


 


with copies to:


 


Davis Polk
& Wardwell

450 Lexington Avenue

New York, New York 10017

Facsimile No.:  (212) 450-3800

Attention:  Alan Dean


 


(3)                                  if to the Company:


 


Griffon
Corporation

100 Jericho Quadrangle

Jericho, New York  11753


Facsimile No.:
(516) 938-3779

Attention: Robert Balemian


 


with copies to:


 


Griffon
Corporation

100 Jericho Quadrangle

Jericho, New York  11753


Facsimile No.: (516) 822-4824

Attention: Edward I. Kramer


 


19

















 


Skadden, Arps,
Slate, Meagher & Flom LLP

Four Times Square

New York, NY  10036


Facsimile
No.:  (917) 777-2918 

Attention:  Gregory A. Fernicola


 


All
such notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; one Business Day after being
timely delivered to a next-day air courier; and when the addressor receives
facsimile confirmation, if sent by facsimile during normal business hours, and
otherwise on the next Business Day during normal business hours.


 


(e)                                  Successors
and Assigns.  This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto, including the Holders; 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 except to the extent such successor or assign
holds Registrable Securities.


 


(f)                                    Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, including
via facsimile, 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.


 


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


 


(h)                                 Governing
Law.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.  EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN MANHATTAN, NEW YORK CITY,
THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT.


 


(i)                                     Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.


 


(j)                                     Securities
Held by the Company or Its Affiliates. 
Whenever the consent or approval of Holders of a specified percentage in
Amount of Registrable Securities is required 


 


20

















 


hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.


 


(k)                                  Third-Party
Beneficiaries.  Holders of
Registrable Securities are intended third party beneficiaries of this Agreement
and this Agreement may be enforced by such Persons.


 


(l)                                     Entire
Agreement.  This Agreement, together
with the Purchase Agreement and the Indenture, is intended by the parties as a
final and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and any
and all prior oral or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and memoranda between
the Initial Purchasers on the one hand and the Company on the other, or between
or among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.


 


 


[Signature page follows]


 


21

















 


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


 


	
   

  	
  GRIFFON
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick
  L. Alesia

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Patrick L.
  Alesia

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK SECURITIES INC. as 

  representative of the Initial Purchasers

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven
  N. Sachman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Steven N.
  Sachman

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  Bradshaw

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  Bradshaw

  
	
   

  	
   

  	
  Title:

  	
  Director

  
						



 


 


[Signature Page to Registration Rights Agreement]


 


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