exv4w2



 






Exhibit 4.2




EXECUTION COPY




SMART MODULAR TECHNOLOGIES (WWH), INC.




$125,000,000 Senior Secured Floating Rate Notes due 2012



REGISTRATION RIGHTS AGREEMENT



March 28, 2005




Citigroup Global Markets Inc.

Lehman Brothers Inc.

As Representatives of the Initial Purchasers

c/o Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013


Ladies and Gentlemen:




          SMART Modular Technologies (WWH), Inc., an exempted company organized under the laws of the
Cayman Islands (the “Company”), proposes to issue and sell to certain purchasers (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as representatives, its Senior
Secured Floating Rate Notes (the “Notes”), upon the terms set forth in the Purchase Agreement
between the Issuers and the Representatives dated March 22, 2005 (the “Purchase Agreement”)
relating to the initial placement (the “Initial Placement”) of the Notes. The Notes will be
unconditionally guaranteed (the “Guarantees” and, together with the Notes, the “Securities”) by the
guarantors listed on the signature pages hereto (the “Guarantors” and, together with the Company,
the “Issuers”). To induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition to your obligations thereunder, the Issuers agree with you for your benefit and
the benefit of the holders from time to time of the Securities (including the Initial Purchasers)
(each a “Holder” and, collectively, the “Holders”), as follows:



          1. Definitions. Capitalized terms used herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:



          “Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.



          “Additional Interest” shall have the meaning set forth in Section 8 hereof.



          “Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative thereto.



          “Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.



 









 





          “Business Day” shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.



          “Closing Date” shall mean the date of the first issuance of the Securities.



          “Commission” shall mean the Securities and Exchange Commission.



          “Deferral Period” shall have the meaning indicated in Section 4(k)(ii) hereof.



          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.



          “Exchange Offer Registration Period” shall mean the one-year period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration Statement.



          “Exchange Offer Registration Statement” shall mean a registration statement of the Issuers on
an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.



          “Exchanging Dealer” shall mean any Holder (which may include any Initial Purchaser) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its own
account as a result of market-making activities or other trading activities (but not directly from
any Issuer or any Affiliate of any Issuer) for New Securities.



          “Final Memorandum” shall mean the offering memorandum, dated March 22, 2005,
relating to the Securities, including any and all exhibits thereto and any information
incorporated by reference therein as of such date.



          “Guarantees” shall have the meaning set forth in the preamble hereto.



          “Guarantors” shall have the meaning set forth in the preamble hereto.



          “Holder” shall have the meaning set forth in the preamble hereto.



          “indemnified party” and “indemnified parties” shall have the meaning set forth in Section 6(a)
hereof.



          “Indenture” shall mean the Indenture relating to the Securities, dated as of the date hereof, among the Issuers and U.S. Bank National Association, as trustee, as the same
may be amended from time to time in accordance with the terms thereof.



          “Initial Placement” shall have the meaning set forth in the preamble hereto.



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          “Initial Purchaser” shall have the meaning set forth in the preamble hereto.



          “Losses” shall have the meaning set forth in Section 6(d) hereof.



          “Majority Holders” shall mean, on any date, Holders of a majority of the aggregate principal amount of Securities registered under a Registration Statement.



          “Managing Underwriters” shall mean the investment banker or investment bankers and manager or
managers that administer an underwritten offering, if any, under a Registration Statement.



          “NASD Rules” shall mean the Conduct Rules and the By-Laws of the National Association of
Securities Dealers, Inc.



          “New Securities” shall mean debt securities of the Issuers identical in all material respects
to the Securities (except that the transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the Indenture.



          “Notes” shall have the meaning set forth in the preamble hereto.



          “Prospectus” shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and
all amendments and supplements thereto, including any and all exhibits thereto and any information
incorporated by reference therein.



          “Purchase Agreement” shall have the meaning set forth in the preamble hereto.



          “Registered
Exchange Offer” shall mean the proposed offer of the Issuers to issue and deliver
to the Holders of the Securities that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for the Securities, a like aggregate principal amount
of the New Securities.



          “Registrable Securities” shall mean (i) Securities other than those that have been (A)
registered under a Registration Statement and disposed of in accordance therewith or (B)
distributed to the public pursuant to Rule 144 under the Act or any successor rule or regulation
thereto that may be adopted by the Commission and (ii) any New Securities resale of which
by the Holder thereof requires compliance with the prospectus delivery requirements of the Act.



          “Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.



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          “Securities” shall have the meaning set forth in the preamble hereto.



          “Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.



          “Shelf Registration Period” has the meaning set forth in Section 3(b) hereof.



          “Shelf
Registration Statement” shall mean a “shelf” registration statement of the


Issuers pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein.



          “Trustee” shall mean the trustee with respect to the Securities under the Indenture.



          “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.



          “underwriter” shall mean any underwriter of Securities in connection with an offering
thereof under a Shelf Registration Statement.



          2. Registered Exchange Offer.



          (a) The Issuers shall prepare and, not later than 240 days following the Closing Date, shall file with the Commission the Exchange Offer Registration Statement with respect to
the Registered Exchange Offer. The Issuers shall use their commercially reasonable efforts to have

the Exchange Offer Registration Statement declared effective under the Act within 330 days of the
Closing Date.



          (b) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers shall
promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such
Holder is not an Affiliate of any Issuer, acquires the New Securities in the ordinary course of such
Holder’s business, has no arrangements with any person to participate in the distribution of the
New Securities and is not prohibited by any law or policy of the Commission from participating in
the Registered Exchange Offer) to trade such New Securities from and after their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of the several states
of the United States.



          (c) In connection with the Registered Exchange Offer, the Issuers shall:




          (i)
mail to each Holder a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of transmittal and related
documents;



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          (ii) keep the Registered Exchange Offer open for not less than 20 Business Days and use
their commercially reasonable efforts to keep the Registered Exchange Offer open for not
more than 25 Business Days after the date notice thereof is mailed to the
Holders (or, in each case, longer if required by applicable law);




          (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required, under the Act
to ensure that it is available for sales of New Securities by Exchanging Dealers during the
Exchange Offer Registration Period;




          (iv)
utilize the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan in New York City, which may be the Trustee, the Trustee or an
Affiliate of either of them;




          (v) permit Holders to withdraw tendered Securities at any time prior to the close
of business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;




          (vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the
Issuers are conducting the Registered Exchange Offer in reliance on
the position of the Commission in Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991); and (B)
including a representation that the Issuers have not entered into any arrangement or understanding
with any person to distribute the New Securities to be received in the Registered Exchange Offer
and that, to the best of the Issuers’ information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in the ordinary course of business and
has no arrangement or understanding with any person to participate in the distribution of the New
Securities; and




          (vii) otherwise use its commercially reasonable efforts to comply in all respects
with all rules and regulations of the Commission.



          (d) As
soon as practicable after the close of the Registered Exchange Offer,
the Issuers shall:




          (i) accept for exchange all Securities tendered and not validly withdrawn pursuant to the Registered Exchange Offer;




          (ii) deliver to the Trustee for cancellation in accordance with Section 4(s) all
Securities so accepted for exchange; and




          (iii) cause the Trustee promptly to authenticate and deliver to each Holder of Securities a
principal amount of New Securities equal to the principal amount of the Securities of such Holder
so accepted for exchange.



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          (e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection with any secondary resale
transaction, which must be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of Regulation S-K under
the Act if the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Issuers or one of their Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be required to
represent in writing to the Issuers that, at the time of the
consummation of the Registered Exchange
Offer:




          (i) any New Securities received by such Holder will be acquired in the ordinary course of business;




          (ii) such Holder will have no arrangement or understanding with any person to
participate in the distribution of the Securities or the New Securities within the meaning
of the Act; and




          (iii) such Holder is not an Affiliate of the Issuers.



          (f) If any Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Issuers shall issue and deliver to
such Initial Purchaser or the person purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in
exchange for such Securities, a like principal amount of New Securities. The Issuers shall use
their commercially reasonable efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued pursuant to the Registered Exchange
Offer.



          3. Shelf
Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission’s staff, the Issuers determine upon advice of their
outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; or (ii) for any other reason the Exchange Offer Registration
Statement is not declared effective within 330 days after the Closing Date or the Registered
Exchange Offer is not consummated within 365 days of the Closing Date; (iii) any Initial Purchaser
so requests with respect to Securities that are not eligible to be exchanged for New Securities in
the Registered Exchange Offer and that are held by it following consummation of the Registered
Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is not eligible to participate
in the Registered Exchange Offer; or (v) in the case of any Initial Purchaser that participates in
the Registered Exchange Offer or acquires New Securities pursuant to Section 2(f) hereof, such
Initial Purchaser does not receive freely tradeable New Securities in exchange for Securities
constituting any portion of an unsold allotment (it being understood that (x) the requirement that
an Initial Purchaser



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deliver a Prospectus containing the information required by Item 507 or 508 of Regulation S-K
under the Act in connection with sales of New Securities acquired in exchange for such Securities
shall not result in such New Securities being not “freely tradeable”; and (y) the requirement that
an Exchanging Dealer deliver a Prospectus in connection with sales of New Securities acquired
in the Registered Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities being not “freely
tradeable”), the Issuers shall effect a Shelf Registration Statement in accordance with
subsection (b) below.




          (b) (i) The Issuers shall as promptly as practicable (but in no event more than 90 days
after the filing obligation arises pursuant to this Section 3), file with the Commission and shall
use their commercially reasonable efforts to have declared effective under the Act, a Shelf
Registration Statement relating to the offer and sale of the Securities or the New Securities, as
applicable, by the Holders thereof from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement; provided, however,
that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by
it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder and shall furnish in writing,
within 20 days after receipt of a request therefore, the information specified in Items 507 and 508
of Registration S-K, as applicable, of the Act for use in connection
with the Shelf Registration;
and provided, further, that with respect to New Securities received by an Initial Purchaser in
exchange for Securities constituting any portion of an unsold allotment, the Issuers may, if
permitted by current interpretations by the Commission’s staff, file a post-effective amendment to
the Exchange Offer Registration Statement containing the information required by Item 507 or 508
of Regulation S-K, as applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a Shelf Registration
Statement; provided, further, the Issuers shall not be under any obligation to file a post-effective
amendment to, a Shelf Registration Statement or the Exchange Registration Statement, as applicable,
or to file a new Shelf Registration Statement pursuant to this Section 2(b), for the six months
after the effective date of the Shelf Registration Statement, or file a post-effective amendment to
a Shelf Registration Statement or the Exchange Registration
Statement, as applicable, more than
once in any six-month period thereafter.



          (ii) The Issuers shall use their commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the prospectus forming part
thereof to be usable by Holder for a period the “Shelf Registration Period”) from the date the Shelf Registration Statement is declared effective by
the Commission until (A) the expiration of the holding period under Rule 144(k) under the Act or (B)
the date upon which all the Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration Statement. The Issuers
shall be deemed not to have used their commercially reasonable efforts to keep the Shelf
Registration Statement effective during the Shelf Registration Period if they voluntarily take any
action that would result in Holders of Securities covered thereby not being able to offer and sell
such Securities at any time during the Shelf Registration Period, unless such action is (x)
required by applicable law or otherwise undertaken by the Issuers in good faith and



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for valid
business reasons (not including avoidance of the Issuers’ obligations hereunder),
including the acquisition or divestiture of assets, and (y) permitted
pursuant to Section 4(k)(ii) hereof.




          (iii) The Issuers shall use their commercially reasonable efforts to cause the Shelf
Registration Statement and the related Prospectus and any amendment
or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or supplement, (A) to comply
in all material respects with the applicable requirements of the Act; and (B) not to contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein (in the case of the Prospectus, in the light
of the circumstances under which they were made) not misleading.



          4. Additional
Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.




              (a) The Issuers shall:




          (i) furnish to each of the Representatives and to counsel for the Holders,
 prior to the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each amendment thereof
and each amendment or supplement, if any, to the Prospectus included therein (including
all documents incorporated by reference therein after the initial filing) and shall use
their commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as the Representatives
reasonably propose;




          (ii) include the information substantially as set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B hereto in the forepart
of the Exchange Offer Registration Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and in Annex D hereto
in the letter of transmittal delivered pursuant to the Registered Exchange Offer;




          (iii) if requested by an Initial Purchaser, include the information required by
Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the
Exchange Offer Registration Statement; and




          (iv)
subject to Section 3, in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell Securities pursuant to the Shelf
Registration Statement as selling security holders.




            (b) The Issuers shall ensure that:



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          (i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all material
respects with the Act; and




          (ii) any Registration Statement and any amendment thereto does not, when it
becomes effective, 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.




          (c) The Issuers shall advise the Representatives, the Holders of Securities covered by any
Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Issuers a telephone or facsimile number and address
for notices, and, if requested by any Representative or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the Issuers shall have
remedied the basis for such suspension):




          (i) when a Registration Statement and any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective
amendment thereto has become effective;




          (ii)
of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information after the notice in
clause (i) has been delivered;




          (iii)
of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose;




          (iv) of the receipt by the Issuers of any notification with respect to the suspension
of the qualification of the securities included therein for sale in
any jurisdiction or the
institution or threatening of any proceeding for such purpose; and




          (v)
of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue
statement of a material fact and (B) do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the Prospectus,
in the light of the circumstances under which they were made) not misleading.




          (d) The Issuers shall use their commercially reasonable efforts to prevent the
issuance of any order suspending the effectiveness of any Registration Statement or the
qualification of the securities therein for sale in any jurisdiction and, if issued, to
obtain as soon as possible the withdrawal thereof.



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          (e) The Issuers shall make available to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material incorporated therein
by reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).




          (f) The Issuers shall, during the Shelf Registration Period, deliver to each
Holder of Securities covered by any Shelf Registration Statement, without charge, as
many copies of the Prospectus (including the Preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as such Holder may
reasonably request. The Issuers consent, subject to the provisions of this Agreement, to the use
of the Prospectus or any amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of the Securities covered by the Prospectus,
or any amendment or supplement thereto, included in the Shelf Registration Statement.




          (g) The Issuers shall make available to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).




          (h) The Issuers shall promptly deliver to each Initial Purchaser, each Exchanging
Dealer and each other person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus included in such Exchange
Offer Registration Statement and any amendment or supplement thereto as any such person may
reasonably request. The Issuers consent, subject to the provisions of this Agreement, to the use of
the Prospectus or any amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the offering and sale of
the New Securities covered by the Prospectus, or any amendment or supplement thereto, included
in the Exchange Offer Registration Statement.




          (i)
Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any
Registration Statement, the Issuers shall arrange, if necessary, for the qualification of the
Securities or the New Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall maintain such qualification in effect so long as required; provided
that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction
where they are not then so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the Initial Placement, the Registered Exchange
Offer or any offering pursuant to a Shelf Registration Statement, in any such jurisdiction where they are not then so subject.




          (j) The Issuers shall use their commercially reasonable efforts to cooperate with the
Holders of Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any



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Registration Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.




          (k)
(i) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v)
above, the Issuers shall promptly (or within the time period provided for by clause (ii) hereof,
if applicable), to the extent requested or required, prepare a post-effective amendment to the
applicable Registration Statement or an amendment or supplement to the related Prospectus or file
any other required document so that, as thereafter delivered to
Initial Purchasers of the
securities included therein, the Prospectus will not include an 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.
In such circumstances, the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 shall be extended by the number of
days from and including the date of the
giving of a notice of suspension pursuant to Section 4(c) to and including the date when the
Initial Purchasers, the Holders of the Securities and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this Section.




          (ii) Upon the occurrence or existence of any pending corporate development or any other
material event that, in the reasonable judgment of the Issuers, makes it appropriate to suspend
the availability of a Shelf Registration Statement and the related Prospectus, the Issuers shall
give notice (without notice of the nature or details of such events)
to the Holders that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice,
each Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration until
such Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section
3(i) hereof, or until it is advised in writing by the Issuers that the Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus. The period during which the availability of the Shelf Registration and any
Prospectus is suspended (the “Deferral Period”) shall not exceed 45 days in any three-month period
or 90 days in any twelve-month period.




          (1) Not later than the effective date of the applicable Registration Statement, the Issuers
shall provide a CUSIP number for the Securities or the New Securities, as the case may be,
registered under such Registration Statement and provide the Trustee with printed certificates
for such Securities or New Securities, in a form eligible for deposit with The Depository Trust
Company.




          (m) The Issuers shall use their commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission and shall make generally available to its security holders
an earnings statement satisfying the provisions of Section 11(a) of the Act as soon as practicable
after the effective date of the applicable Registration Statement and in any event no later than 45
days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company’s first fiscal quarter commencing after the effective date
of the applicable Registration Statement.



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          (n) The Issuers shall cause the Indenture to be qualified under the Trust Indenture Act in a
timely manner.




          (o) The Issuers may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Issuers such information regarding the Holder and the
distribution of such securities as the Issuers may from time to time reasonably require for
inclusion in such Registration Statement. The Issuers may exclude from such Shelf Registration
Statement the Securities of any Holder that unreasonably fails to furnish all or any material
portion of such information within a reasonable time after receiving such request. The Issuers
shall be under no obligation to compensate any holder that fails to provide the information
required by this Section 4(o) for any lost income, interest or other opportunity, or any liability
incurred, as a result of the Issuers’ decision to exclude such Securities from the Shelf
Registration Statement.




          (p) In the case of any Shelf Registration Statement, the Issuers shall enter into customary
agreements (including, if requested, an underwriting agreement in customary form) and take all
other appropriate actions in order to expedite or facilitate the registration or the disposition
of the Securities, and in connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures no less favorable than those
set forth in Section 6 hereof.




          (q) In the case of any Shelf Registration Statement, the Issuers shall:




          (i) make reasonably available for inspection by the Holders of Securities to be registered thereunder, any underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other records and pertinent
corporate documents of the Issuers and their subsidiaries;




          (ii) cause each Issuers’ officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;




          (iii) make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase Agreement;




          (iv) obtain opinions of counsel to the Issuers and updates thereof (which
counsel and opinions (in form, scope and substance) shall cover such matters as are
customarily covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters and be substantially in
the form of Exhibits A, B, or C, as applicable, to the Purchase Agreement);



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          (v) obtain “comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in “comfort” letters in connection with primary
underwritten offerings; and




          (vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Issuers.




The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q) shall be
performed at (A) the effectiveness of such Registration Statement and each post-effective
amendment thereto; and (B) each closing under any underwriting or similar agreement as and to the
extent required thereunder.




        (r) In the case of any Exchange Offer Registration Statement, the Issuers shall, if
requested by an Initial Purchaser, or by a broker dealer that holds Securities
that were acquired as a result of market making or other trading activities:




          (i) make reasonably available for inspection by the requesting party, and any
attorney, accountant or other agent retained by the requesting party, all relevant
financial and other records, pertinent corporate documents and properties of the Issuers
and their subsidiaries;




          (ii) cause the Issuers’ officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the requesting party or any such
attorney, accountant or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations;




          (iii) make such representations and warranties to the requesting party, in form,
substance and scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to, those set
forth in the Purchase Agreement;




          (iv) obtain opinions of counsel to the Issuers and updates thereof (which counsel and
opinions (in form, scope and substance) shall cover such matters as are customarily
covered in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by the requesting party or its counsel and be substantially in the
form of Exhibits A, B or C, as applicable, to the Purchase Agreement);



 -13-









 






          (v) obtain “comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed to the requesting
party, in customary form and covering matters of the type customarily covered in
“comfort” letters in connection with primary underwritten offerings, or if requested by
the requesting party or its counsel in lieu of a “comfort” letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35, covering matters requested
by the requesting party or its counsel; and




          (vi) deliver such documents and certificates as may be reasonably requested by the
requesting party or its counsel, including those to evidence compliance with Section 4(k)
and with conditions customarily contained in underwriting agreements.




          The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this Section shall
be performed at the close of the Registered Exchange Offer and the effective date of any
post-effective amendment to the Exchange Offer Registration Statement.




          (s) If a Registered Exchange Offer is to be consummated, upon delivery of the Securities by
Holders to the Issuers (or to such other person as directed by the
Issuers) in exchange for the New Securities, the Issuers shall mark, or cause to be marked,
on the Securities so exchanged that such Securities are being cancelled in exchange for the New
Securities. In no event shall the Securities be marked as paid or otherwise satisfied.




          (t) The Issuers shall use their commercially reasonable efforts if the Securities have been
rated prior to the initial sale of such Securities, to confirm such ratings will apply to the
Securities or the New Securities, as the case may be, covered by a Registration Statement.




          (u) In the event that any Broker-Dealer shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or “assist in the distribution” (within the
meaning of the NASD Rules) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Issuers shall
assist such Broker-Dealer in complying with the NASD Rules.




          (v) The Issuers shall use their commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities or the New Securities, as the case may be,
covered by a Registration Statement.



          5. Registration Expenses. The Issuers shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4 hereof and (a) in the case of any
Shelf Registration Statement, will reimburse the Holders who are selling or reselling Securities
pursuant to the “Plan of Distribution” contained in the Shelf Registration Statement for the
reasonable fees and disbursements of one firm or counsel (which shall initially be Cahill



 -14-









 




Gordon & Reindel llp, but which may be another nationally recognized law
firm experienced in securities matters designated by the Majority Holders) to act as counsel for
the Holders in connection therewith, and (b) in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and disbursements
of counsel acting in connection therewith; provided that the aggregate amount of fees and
disbursements of counsel under this clause (b) shall not exceed $15,000.




          6. Indemnification and Contribution. (a) Each Issuer agrees, jointly and severally, to
indemnify and hold harmless each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement, each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors, officers,
employees, Affiliates and agents of each such Holder, Initial Purchaser or Exchanging Dealer and
each person who controls any such Holder, Initial Purchaser or Exchanging Dealer within the meaning
of either the Act or the Exchange Act (each an “indemnified party” and collectively the “indemnified
parties”) against any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof 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 (in the case of any
preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were
made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) no Issuer will be liable
in any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Issuers
by or on behalf of the party claiming indemnification specifically for inclusion therein and (ii)
with respect to any untrue statement or omission or alleged untrue statement or omission made in
any preliminary Prospectus relating to a Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any such indemnified party from whom the
person asserting any such losses, claims, damages or liabilities purchased the securities
concerned, if a copy of the Prospectus relating to such Securities or New Securities (as amended or
supplemented at the time of sale) was required to be delivered by such indemnified party and was not
delivered as given by or on behalf of such indemnified party to such person and if such Prospectus
(as so amended or supplemented) would have corrected the defect giving rise to such loss, claim,
damage or liability. This indemnity agreement shall be in addition to any liability that any Issuer
may otherwise have.



          Each Issuer also agrees, jointly and severally, to indemnify as provided in this Section 6(a)
or contribute as provided in Section 6(d) hereof to Losses of each underwriter, if any, of Securities
or New Securities, as the case may be, registered under a Shelf Registration Statement, their
directors, officers, employees, Affiliates or agents and each person who controls



 -15-









 




such underwriter on substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section
4(p) hereof.




          (b) Each Holder of securities covered by a Registration Statement (including each Initial
Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and
hold harmless the Issuers, each of their directors, each of their officers who signs such
Registration Statement and each person who controls any Issuer within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuers to each
such Holder, but only with reference to written information relating to such Holder furnished to the Issuers by or on behalf of such
Holder specifically for inclusion in the documents referred to in the foregoing indemnity and shall
reimburse such persons for any legal or other expenses incurred in connection with the
investigation of such loss, claim, damage or liability. This indemnity agreement will be in
addition to any liability that any such Holder may otherwise have.



          (c) Promptly after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to
represent the indemnified party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees and expenses of any
separate counsel, other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election
to appoint counsel (including local counsel) to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened



 -16-









 




 claim, action, suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim, action, suit or proceeding.




          (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim, liability, damage or
action) (collectively “Losses”) to which such indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in no case shall any
Initial Purchaser be responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such Security, or in the case of a New Security, applicable to
the Security that was exchangeable into such New Security, as set forth in the Final Memorandum,
nor shall any underwriter be responsible for any amount in excess of the underwriting discount or
commission applicable to the securities purchased by such underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the Issuers shall be deemed to be
equal to the total net proceeds from the Initial Placement (before deducting expenses) as set
forth in the Final Memorandum. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be equal to the value of
receiving Securities or New Securities, as applicable, registered under the Act. Benefits received
by any underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders were treated as one entity
for such purpose) or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each



 -17-









 




person who controls any Issuer within the meaning of either the Act or the Exchange Act, each officer
of any Issuer who shall have signed the Registration Statement and each director of any Issuer
shall have the same rights to contribution as the Issuers, subject in each case to the applicable
terms and conditions of this paragraph 6(d).




          (e) The provisions of this Section 6 will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers or any of the indemnified persons
referred to in this Section 6, and will survive the sale by a Holder of securities covered by a
Registration Statement.



          7. Underwritten Registrations. (a) If any of the Securities or New Securities, as the case may
be, covered by any Shelf Registration Statement are to be sold in an underwritten offering, the
Managing Underwriters shall be selected by the Majority Holders.



          (b) No person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.



          8. Registration Defaults. If any of the following events (each, a “Registration Default”) shall
occur, then the Issuers shall pay additional interest (the “Additional Interest”) to the Holders of
Securities in respect of the Securities as follows:




          (a) if any Registration Statement required by this Agreement is not filed with the
Commission on or prior to the date specified for such filing in this Agreement, then Additional
Interest shall accrue on the Registrable Securities at a rate of 0.25% per annum for the first
90 days from and including such specified date and such rate shall in-crease by 0.25% per annum
at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum; or




          (b) if any Registration Statement required by this Agreement is not declared effective by the
Commission on or prior to the date by which commercially reasonable efforts are to be used to
cause such effectiveness under this Agreement, then commencing on the day after such specified
date, Additional Interest shall accrue on the Registrable Securities at a rate of 0.25% per annum
for the first 90 days from and including such specified date and such rate shall increase by 0.25%
per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed
1.00% per annum; or




          (c) if any Registration Statement required by this Agreement has been declared effective
but ceases to be effective at any time at which it is required to be effective under this Agreement, then commencing on the day the Registration Statement ceases to
be effective, Additional Interest shall accrue on the Registrable Securities at a rate of 0.25%
per annum for the first 90 days from and including such specified date and



 -18-









 







such rate shall increase by 0.25% per annum at the end of each subsequent 90-day period, but in no
event shall such rate exceed 1.00% per annum;


provided,
however, that (1) upon the filing of the Registration Statement (in the
case of paragraph (a) above), (2) upon the effectiveness of the Registration Statement (in the case
of paragraph (b) above), or (3) upon the effectiveness of the Registration Statement which had
ceased to remain effective (in the case of paragraph (c) above), Additional Interest shall cease to
accrue. A Registration Default referred to in Section 8 hereof shall be deemed not to have occurred
and be continuing in relation to a Shelf Registration Statement or, if required to be kept
effective after consummation of the Exchange Offer, the Exchange Offer Registration Statement or
the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the
filing of a post-effective amendment to such Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the related prospectus or
(y) any other material events with respect to the Issuers that would need to be described in such
Registration Statement or the related prospectus and (ii) in the case of clause (y), the Issuers
are proceeding promptly and in good faith to amend or supplement such Registration Statement and
related prospectus to describe such events or otherwise cause such Registration Statement and
related prospectus to again be usable; provided, however, that if any such Registration Default
occurs for a continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default occurs until such
Registration Default is cured; provided further, however, that no Issuer may avail itself of the
relief provided by this sentence for more than 90 days in any 365-day period.




          9. No Inconsistent Agreements. The Issuers have not entered into, and agree not to enter into,
any agreement with respect to their securities that is inconsistent with the rights granted to the
Holders herein or that otherwise conflicts with the provisions hereof.



          10. Amendments and Waivers. The provisions of this Agreement may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not
be given, unless the Issuers have obtained the written consent of the Holders of a majority of the
aggregate principal amount of the Registrable Securities out-standing; provided that, with respect
to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Issuers shall obtain the written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective; provided, further, that
no amendment, qualification, supplement, waiver or consent with respect to Section 8 hereof
shall be effective as against any Holder of Registered Securities unless consented to in
writing by such Holder; and provided, further, that the provisions of this Article 10 may not be
amended, qualified, modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuers have obtained the written consent of the
Initial Purchasers and each Holder. Notwithstanding the foregoing (except the foregoing provisos),
a waiver or consent to departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on



 -19-









 




the basis of Securities or New Securities, as the case may be, being sold rather than registered
under such Registration Statement.




          11. Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing

overnight delivery:




          (a) if to a Holder, at the most current address given by such holder to the Issuers
in accordance with the provisions of this Section 11, which address initially is, with
respect to each Holder, the address of such Holder maintained by the Registrar under the
Indenture;




          (b) if to the Representatives, initially at the address or addresses set forth in the
Purchase Agreement; and




          (c) if to the Issuers, initially at the address set forth in the Purchase Agreement.



          All such notices and communications shall be deemed to have been duly given when received.



          The Initial Purchasers or the Issuers by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.



          12. Remedies. Each Holder, in addition to being entitled to exercise all rights provided to it
herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery
of liquidated or other damages, will be entitled to specific performance of its rights under this
Agreement. Each Issuer agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to
waive in any action for specific performance the defense that a remedy at law would be adequate.



          13. Successors. This Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective successors and assigns, including, without the need for an express
assignment or any consent by the Issuers thereto,subsequent Holders of Securities and the New Securities, and the indemnified persons referred
to in Section 6 hereof. The Issuers hereby agree to extend the benefits of this Agreement to any
Holder of Securities and the New Securities, and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.



          14. Jurisdiction. Each Issuer agrees that any suit, action or proceeding against such Issuer
brought by any Holder or Initial Purchaser, the directors, officers, employees, Affiliates and
agents of any Holder or Initial Purchaser, or by any person who controls any Holder or Initial
Purchaser, arising out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any State or U.S. federal court in The City of New York and County of New York,
and waives any objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such



 -20-









 




courts in any suit, action or proceeding. Each Issuer hereby appoints The Corporation Trust
Company as its authorized agent (the “Authorized Agent”) upon whom process may be served in any
suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated herein which may be instituted in any State or U.S. federal court in The City of New
York and County of New York, by any Holder or Initial Purchaser, the directors, officers,
employees, Affiliates and agents of any Holder or Initial Purchaser, or by any person who controls
any Holder or Initial Purchaser, and expressly accepts the non-exclusive jurisdiction of any such
court in respect of any such suit, action or proceeding. Each Issuer hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and such Issuer agrees to take any and all action, including the
filing of any and all documents that may be necessary to continue such appointment in full force
and effect as aforesaid. Proper service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the applicable Issuer. Each Issuer further agrees
to take any and all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in full force and
effect so long as any of the Securities shall be outstanding. To the extent that an Issuer
may acquire any immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, such Issuer hereby irrevocably waives such
immunity in respect of this Agreement, to the fullest extent permitted by law. Notwithstanding the
foregoing, any action arising out of or based upon this Agreement may be instituted by any
Holder or Initial Purchaser, the directors, officers, employees, Affiliates and agents of any
Holder or Initial Purchaser, or by any person who controls any Holder or Initial Purchaser, in any
court of competent jurisdiction in the Cayman Islands.




          15. Currency. Each reference in this Agreement to U.S. dollars (the “relevant currency”) is
of the essence. To the fullest extent permitted by law, the obligation of the Issuers in respect
of any amount due under this Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in
the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures,
purchase with the sum paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such payment. If the amount
in the relevant currency that may be so purchased for any reason falls short of the amount
originally due, the Issuers will pay such additional amounts, in the relevant currency, as may be
necessary to compensate for the shortfall. Any obligation of the Issuers not discharged by such
payment will, to the fullest extent permitted by applicable law, be due as a separate and
independent obligation and, until discharged as provided herein, will continue in full force and
effect.



          16. Waiver of Immunity. To the extent that any Issuer has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court
or from set-off or any legal process (whether service or notice, attachment in aid or otherwise)
with respect to itself or any of its property, such Issuer hereby irrevocably waives and agrees
not to plead or claim such immunity in respect of its obligations under this Agreement.



 -21-









 





          17. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall constitute one and the
same agreement.



          18. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.



          19. Applicable Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed in the State of New
York. The parties hereto each hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.



          20. Severability. In the event that any one of more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.



          21. Securities Held by the Issuers, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable, held by the
Issuers or their Affiliates (other than subsequent Holders of Securities or New Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Securities
or New Securities) shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.



 -22-









 





          If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the Issuers and the
several Initial Purchasers.



	 	 	 	 	 
	 	Very truly yours,



SMART MODULAR 

TECHNOLOGIES (WWH), 

INC.

 	 
	 	By:  	/s/ Iain MacKenzie
 	 
	 	 	Name:  	Iain MacKenzie  	 
	 	 	Title:  	President
	 
	 	EXECUTED AS A DEED 	 
	 



[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]






 









 








	 	 	 	 	 
	 	SMART MODULAR

TECHNOLOGIES (GLOBAL), 

INC.

 	 
	 	By:  	/s/ Ann Nguyen 	 
	 	 	Name:  	Ann Nguyen      	 
	 	 	Title:  	Secretary

	 
	 	EXECUTED AS A DEED 	 
	 



[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]





 









 








	 	 	 	 	 
	 	SMART MODULAR

TECHNOLOGIES (DH), INC. 

 	 
	 	By:  	/s/ Ann Nguyen	 
	 	 	Name:  	Ann Nguyen	 
	 	 	Title:  	Assistant Secretary
	 
	 	EXECUTED AS A DEED 	 
	 



[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]






 









 








	 	 	 	 	 
	 	SMART MODULAR

TECHNOLOGIES (CI), INC.

 	 
	 	By:  	/s/ Ann Nguyen
 	 
	 	 	Name:  	Ann Nguyen  	 
	 	 	Title:  	Assistant Secretary
	 
	 	EXECUTED AS A DEED 	 
	 



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	 	SMART MODULAR

TECHNOLOGIES (FOREIGN HOLDINGS), INC.

 	 
	 	By:  	/s/ Iain MacKenzie
 	 
	 	 	Name:  	Iain MacKenzie      	 
	 	 	Title:  	President
	 
	 	EXECUTED AS A DEED 	 
	 



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	 	SMART MODULAR

TECHNOLOGIES (PUERTO RICO) INC.

 	 
	 	By:  	/s/ Iain MacKenzie
 	 
	 	 	Name:  	Iain MacKenzie      	 
	 	 	Title:  	CEO & President
	 
	 	EXECUTED AS A DEED 	 
	 



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	 	SMART MODULAR 

TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Iain MacKenzie
 	 
	 	 	Name:  	Iain MacKenzie      	 
	 	 	Title:  	CEO & President 	 
	 





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	 	SMART MODULAR

TECHNOLOGIES (DE), INC.

 	 
	 	By:  	/s/ Ann Nguyen
 	 
	 	 	Name:  	Ann Nguyen  	 
	 	 	Title:  	Assistant Secretary 	 
	 




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	 	SMART MODULAR

TECHNOLOGIES SDN. BHD.

 	 
	 	By:  	/s/ Iain MacKenzie
 	 
	 	 	Name:  	Iain MacKenzie 	 
	 	 	Title:  	Director 	 
	 



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	 	SMART MODULAR

TECHNOLOGIES (EUROPE) LIMITED

 	 
	 	By:  	/s/ Ann Nguyen
 	 
	 	 	Name:  	Ann Nguyen      	 
	 	 	Title:  	Secretary 	 
	 



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	 	MODULAR BRASIL 

PARTICIPAÇÕES LTDA.

 	 
	 	By:  	/s/ Noboru Takahashi
 	 
	 	 	Name:  	Noboru Takahashi 	 
	 	 	Title:  	Officer 	 
	 



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	 	SMART MODULAR

TECHNOLOGIES INDÚSTRIA DE

COMPONENTES ELETRÔNICOS LTDA.

 	 
	 	By:  	/s/ Noboru Takahashi
 	 
	 	 	Name:  	Noboru Takahashi 	 
	 	 	Title:  	Officer 	 
	 



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The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.




Citigroup Global Markets Inc.
 Lehman Brothers Inc.


By: CITIGROUP GLOBAL MARKETS INC.




	 	 	 	 	 
	By

	 	/s/ Laurence Braham
	 	 
	 

	 	 	 	 
	 

	 	Name: Laurence Braham	 	 
	 

	 	Title: Managing Director	 	 






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