Exhibit 4.4


 


EXECUTION COPY


 






 


Registration Rights Agreement


 


 


Dated as of May 19,
2006


 


among


 


FEI Company


 


and


 


Merrill Lynch & Co.


Merrill Lynch, Pierce, Fenner & Smith Incorporated


Needham & Company, LLC


Thomas Weisel Partners LLC


D.A. Davidson & Co.


and


Merriman Curhan Ford & Co.


 






 

















 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (the ”Agreement”) is made and entered into this 19th day of May,
2006, among FEI Company, an Oregon corporation (the ”Company”),
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Needham & Company, LLC, Thomas Weisel Partners LLC, D.A.
Davidson & Co. and Merriman Curhan Ford & Co. (collectively, the ”Initial Purchasers”).


 


This Agreement is made pursuant to the
Purchase Agreement, dated as of May 15, 2006, among the Company and the Initial
Purchasers (the ”Purchase Agreement”),
which provides for the sale by the Company to the Initial Purchasers of an
aggregate of $100,000,000 aggregate principal amount ($115,000,000 principal amount
if the Initial Purchasers exercise their option in full) of the Company’s 2.875%
Convertible Subordinated Notes due 2013 (the ”Securities”).  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.  The execution of this Agreement is a
condition to the closing under the Purchase Agreement.


 


In consideration of the foregoing, the
parties hereto agree as follows:


 


1.             Definitions.


 


As used in this Agreement, the following
capitalized defined terms shall have the following meanings:


 


“1933 Act”
shall mean the Securities Act of 1933, as amended from time to time.


 


“1934 Act”
shall mean the Securities Exchange Act of l934, as amended from time to time.


 


“1939 Act” shall
mean the Trust Indenture Act of 1939, as amended from time to time.


 


“Closing Date”
shall mean the First Delivery Date as such term is defined in the Purchase
Agreement.


 


“Common Stock”
shall mean any shares of common stock, no par value, of the Company and any
other shares of common stock as may constitute “Common Stock” for purposes of
the Indenture.


 


“Company” shall
have the meaning set forth in the preamble and shall also include the Company’s
successors.


 


“Depositary”
shall mean The Depository Trust Company, or any other depositary appointed by
the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of New
York.


 


“Holder” shall
mean an Initial Purchaser, for so long as it owns any Registrable Securities,
and each of its successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the Indenture.


 


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“Indenture”
shall mean the Indenture relating to the Securities, dated as of the date
hereof, between the Company and The Bank of New York Trust Company, as trustee,
as the same may be amended, supplemented, waived or otherwise modified from
time to time in accordance with the terms thereof.


 


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


 


“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that, for purposes of this
definition, a Holder of shares of Common Stock which constitute Registrable
Securities and issued upon conversion of the Securities shall be deemed to hold
an aggregate principal amount of Registrable Securities (in addition to the
principal amount of other Securities held by such Holder) equal to the product
of (x) the number of such shares of Common Stock held by such Holder and
(y) the conversion rate in effect at the time of such conversion
determined in accordance with the Indenture; provided  further that
Registrable Securities held by the Company or any Affiliate (as defined in the
Indenture) of the Company shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage
amount.


 


“Option Closing Date”
shall mean the Optional Delivery Date, as such term is defined in the Purchase
Agreement, or if the Initial Purchasers do not exercise their option to
purchase additional Securities pursuant to the terms of the Purchase Agreement,
“Option Closing Date” shall mean the
Closing Date.


 


“Person” shall
mean an individual, partnership (general or limited), corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.


 


“Prospectus”
shall mean the prospectus included in a Shelf Registration Statement, including
any preliminary prospectus, any “issuer-free writing prospectus,” as such term
is defined in Rule 433 under the 1933 Act, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement or free writing prospectus with respect to the terms of
the offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus or free writing prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.


 


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


 


“Registrable Securities”
shall mean all or any of the Securities issued from time to time under the
Indenture in registered form, and the shares of Common Stock issuable upon
conversion of such Securities; provided, however,
that any such Securities shall cease to be Registrable Securities when (i) a
Shelf Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Shelf Registration Statement, (ii) such Securities
have been or may be sold or transferred to the public pursuant to Rule l44 (or
any similar provision then in force,


 


2

















 


including Rule 144(k) but not Rule 144A)
under the 1933 Act, or (iii) such Securities shall have ceased to be
outstanding.


 


“Registration Expenses”
shall mean any and all expenses incident to performance of or compliance by the
Company with this Agreement, including without limitation:  (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the ”NASD”)
registration and filing fees, including, if applicable, the fees and expenses
of any “qualified independent underwriter” (and its counsel) that is required
to be retained by any holder of Registrable Securities in accordance with the
rules and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and disbursements
of counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities and any filings with the
NASD), (iii) all expenses of the Company in preparing or assisting in
preparing, word processing, printing and distributing any Shelf Registration
Statement, any Prospectus, any amendments or supplements thereto, any
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or “comfort”
letters required by or incident to such performance and compliance,
(vii) the reasonable fees and expenses of the Trustee, and any escrow
agent or custodian, (viii) the reasonable fees and expenses of a single
counsel to the Holders in connection with the Shelf Registration Statement,
which counsel shall be selected by the Majority Holders, and any fees and
expenses of any special experts retained by the Company in connection with any
Shelf Registration Statement, but excluding any underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.


 


“SEC” shall mean
the Securities and Exchange Commission or any successor agency or government
body performing the functions currently performed by the United States
Securities and Exchange Commission.


 


“Shelf Registration”
shall mean a registration effected pursuant to Section 2.1 hereof.


 


“Shelf Registration Statement”
shall mean a “shelf” registration statement of the Company pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all 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.


 


“Well-Known Seasoned Issuer”
shall have the meaning set forth in Rule 405 under the 1933 Act.


 


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2.             Registration Under the 1933 Act.


 


2.1           Shelf Registration.


 


(a)           The
Company shall, at its cost, not later than 120 days after the Closing Date,
file the Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders that have provided the information
pursuant to Section 2.1(d) with the SEC, and thereafter shall use its
commercially reasonable efforts to cause such Shelf Registration Statement to
become effective as promptly as is practicable, but in no event later than 210
days after the Closing Date; provided, however,
that in the event that the Company is eligible for, and elects to utilize, the “automatic
shelf” registration procedure on Form S-3 available to Well-Known Seasoned
Issuers, the only obligation of the Company under this Section 2.1(a) shall be
to file a Shelf Registration Statement with the SEC no later than 150 days
after the Closing Date, which Shelf Registration Statement shall become
immediately effective upon filing pursuant to the SEC rules adopted in Release
No. 33-8591; provided, further, that the
Company may, upon written notice to all Holders, defer the filing or the
effectiveness of the Shelf Registration Statement, or defer the filing of the
Shelf Registration Statement if the Company is eligible for, and elects to
utilize, the “automatic shelf” registration procedure, for a reasonable period
not to exceed 90 days if the Company is engaged in non-public negotiations or
other non-public business activities, disclosure of which would be required in
such Shelf Registration Statement (but would not be required if such Shelf
Registration Statement were not filed), and the Company’s Board of Directors or
a duly authorized committee thereof determines in good faith that such
disclosure would have a material adverse effect on the Company and its
subsidiaries taken as a whole.


 


(b)           The
Company shall, at its cost, use its commercially reasonable efforts, subject to
Section 2.5, to keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders
until the earliest of (1) the sale pursuant to the Shelf Registration Statement
of the Registrable Securities, (2) the date when the Holders, other than
holders that are Affiliates, are able to sell all such Registrable Securities
immediately without restriction pursuant to the volume limitation provisions of
Rule 144 (or any similar provision then in force, including Rule 144(k) but not
Rule 144A) under the 1933 Act or otherwise and (3) the date that is two years
from the Option Closing Date (the ”Effectiveness Period”).


 


(c)           Notwithstanding
any other provisions hereof, the Company shall use its commercially reasonable
efforts to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf 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 and (iii) any


 


4

















 


Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.


 


(d)           Notwithstanding
any other provision hereof, no Holder of Registrable Securities may include any
of its Registrable Securities in the Shelf Registration Statement pursuant to
this Agreement unless the Holder furnishes to the Company a fully completed
notice and questionnaire in the form attached as Annex A to the Offering
Memorandum (the ”Questionnaire”)
and such other information in writing as the Company may reasonably request in
writing for use in connection with the Shelf Registration Statement or
Prospectus included therein and in any application to be filed with or under
state securities laws.  In order to be
named as a selling securityholder in the Prospectus at the time of
effectiveness of the Shelf Registration Statement, each Holder must, before the
effectiveness of the Shelf Registration Statement and no later than the 20th
day after the issuance of a press release by the Company announcing the initial
filing of the Registration Statement (or the filing of the first amendment to
the Shelf Registration Statement in the event the Company promptly files the
Shelf Registration Statement following the date of this Agreement), furnish the
completed Questionnaire and such other information that the Company may
reasonably request in writing, if any, to the Company in writing and the
Company will include the information from the completed Questionnaire and such
other information, if any, in the Shelf Registration Statement and the
Prospectus in a manner so that upon effectiveness of the Shelf Registration
Statement the Holder will be permitted to deliver the Prospectus to purchasers
of the Holder’s Registrable Securities. 
From and after the date that the Shelf Registration Statement is first
declared effective by the SEC, upon receipt of a completed Questionnaire and
such other information that the Company may reasonably request in writing, if
any, the Company will use its commercially reasonable efforts to file within 20
business days any amendments or supplements to the Shelf Registration Statement
necessary for such Holder to be named as a selling securityholder in the
Prospectus contained therein to permit such Holder to deliver the Prospectus to
purchasers of the Holder’s Securities (subject to the Company’s right to
suspend the Shelf Registration Statement as described in Section 2.5 below); provided, however, that the Company shall not be required to
file more than one post-effective amendment to the Shelf Registration Statement
in any calendar quarter for all such Holders. 
Holders that do not deliver a completed written Questionnaire and such
other information, as provided for in this Section 2.1(d), will not be named as
selling securityholders in the Prospectus. 
Each Holder named as a selling securityholder in the Prospectus agrees
to promptly furnish to the Company all information required to be disclosed in
order to make information previously furnished to the Company by the Holder not
materially misleading and any other information regarding such Holder and the
distribution of such Holder’s Registrable Securities as the Company may from
time to time reasonably request in writing.


 


5

















 


(e)           Each
Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration Statement without delivering, or causing to be delivered, a
Prospectus to the purchaser thereof and, following termination of the
Effectiveness Period, to notify the Company, within ten days of a written
request by the Company, of the amount of Registrable Securities sold pursuant
to the Shelf Registration Statement and, in the absence of a response, the
Company may assume that all of such Holder’s Registrable Securities have been
so sold; provided that the Company shall use commercially reasonable efforts to
confirm that all of such Holder’s Registrable Securities have been so sold
prior to making such assumption.


 


The Company shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement.  The Company further agrees,
if necessary, to supplement or amend the Shelf Registration Statement, as
required by Section 3(b) below, and to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.


 


2.2           Expenses.  The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2.1.  Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.


 


2.3           Effectiveness.


 


(a)           The
Company will be deemed not to have used commercially reasonable efforts to
cause the Shelf Registration Statement to become, or to remain, effective
during the requisite period if the Company voluntarily takes any action that
would, or omits to take any action which omission would, result in any such
Shelf Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to offer and sell such
Registrable Securities during that period as and to the extent contemplated
hereby, unless such action is required by applicable law.


 


(b)           A
Shelf Registration Statement pursuant to Section 2.1 hereof will not be deemed
to have become effective unless it has been declared effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to have become
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may
legally resume.


 


2.4           Interest.  In the event that (a) the Shelf Registration
Statement has not been filed with the SEC within 120 days after the Closing
Date, (b) the Shelf Registration Statement has not become effective within 210
days after the Closing Date, (c) the Shelf Registration Statement shall cease
to be effective or fail to be usable, subject to Section 2.5,


 


6

















 


without being succeeded within seven business
days by a post-effective amendment or a report filed with the SEC pursuant to
the 1934 Act that cures the failure of the Shelf Registration Statement to be
effective or usable, or (d) the use of the Prospectus has been suspended
pursuant to Section 2.5 longer than the period permitted by Section 2.5 (each
such event being a ”Registration Default”),
additional interest, as liquidated damages (“Liquidated
Damages”), will accrue at a rate per annum of one-quarter of one
percent (0.25%) of the principal amount of the Securities for the first 90-day
period following the Registration Default, and thereafter at a rate per annum
of one-half of one percent (0.50%) of the principal amount of the Securities, provided that in no event shall Liquidated Damages accrue at
a rate per annum exceeding one half of one percent (0.50%) of the issue price
of the Securities, provided further
that no Liquidated Damages shall accrue after the second anniversary of the
date of this Agreement, provided further that
Liquidated Damages shall not accrue under clause (a) above in the event that
the Company is eligible for, and elects to utilize, the “automatic shelf”
registration procedure on Form S-3 available to Well-Known Seasoned Issuers and
files a Shelf Registration Statement with the Commission no later than 150 days
after the Closing Date, which Shelf Registration Statement shall become
immediately effective upon filing pursuant to Rule 462 under the 1933 Act,
as such rule may be amended from time to time; provided
further that Liquidated Damages shall not accrue under clause (c)
and (d) above with respect to any Holder that (x) does not submit a properly
completed Questionnaire, and (y) is not named as a Selling Holder in the Shelf
Registration Statement; and provided further that
no Liquidated Damages shall accrue under clause (a) or (b) above if,
pursuant to Section 2.1(a) hereof, the Company defers the filing or effectiveness
of the Shelf Registration Statement, or defers the filing of the Shelf
Registration Statement if the Company is eligible for, and elects to utilize,
the “automatic shelf” registration procedures, for a reasonable period not to
exceed 90 days if the Company is engaged in non-public negotiations or other
non-public business activities, disclosure of which would be required in such
Shelf Registration Statement (but would not be required if such Shelf
Registration Statement were not filed), and the Board of Directors of the
Company or a duly authorized committee thereof determines in good faith that
such disclosure would have a material adverse effect on the Company and its
subsidiaries taken as a whole.  Upon the
cure of all Registration Defaults then continuing, the accrual of Liquidated
Damages will automatically cease and the interest rate borne by the Securities
will revert to the original interest rate at such time.  Liquidated Damages shall be computed based on
the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is not effective or is unusable.  Holders who have converted Securities into
Common Stock will not be entitled to receive any Liquidated Damages with respect
to such Common Stock or the issue price of the Securities converted.


 


The Company shall notify the Trustee within three
business days after each and every date on which an event occurs in respect of
which Liquidated Damages are required to be paid.  Liquidated Damages shall be paid by depositing
with the Trustee, in trust, for the benefit of the Holders of Registrable
Securities, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Liquidated Damages
then due.  The Liquidated Damages due
shall be payable on each interest payment date to the record Holder of
Registrable Securities entitled to receive the interest payment to be paid on
such date as set forth in the Indenture. 
Each obligation to pay Liquidated Damages shall be deemed to accrue from
and including the day following the Registration Default to but excluding the
day on which the Registration Default is cured.


 


7

















 


A Registration Default under clause (a) above
shall be cured on the date that the Registration Statement is filed with the
SEC.  A Registration Default under clause
(b) above shall be cured on the date that the Shelf Registration Statement is
declared effective by the SEC.  A
Registration Default under clauses (c) or (d) above shall be cured on the date
an amended Shelf Registration Statement is declared effective by the SEC or the
Company otherwise declares the Shelf Registration Statement and the Prospectus
useable, as applicable.  The Company will
have no liabilities for monetary damages with respect to any Registration
Default for which Liquidated Damages are expressly provided for herein.


 


2.5           Suspension.  The Company may suspend the use of any
Prospectus, without incurring or accruing any obligation to pay Liquidated
Damages pursuant to Section 2.4 hereof, for a period not to exceed 45 calendar
days in any three-month period, or an aggregate of 120 calendar days in any
twelve-month period, (each, a ”Suspension Period”)
if the Board of Directors of the Company shall have determined in good faith
that because of valid business reasons (not including avoidance of the Company’s
obligations hereunder), including without limitation proposed or pending
corporate developments and similar events or because of filings with the SEC,
it is in the best interests of the Company to suspend such use, and prior to
suspending such use the Company provides the Holders with written notice of
such suspension, which notice need not specify the nature of the event giving
rise to such suspension.  Each Holder
shall keep confidential any communications received by it from the Company
regarding the suspension of the use of the Prospectus, except as required by
applicable law.


 


3.             Registration Procedures.


 


In connection with the obligations of the
Company with respect to the Shelf Registration, the Company shall:


 


(a)           prepare
and file with the SEC a Shelf Registration Statement, within the relevant time
period specified in Section 2, on the appropriate form under the 1933 Act,
which form (i) shall be selected by the Company, (ii) shall be available for
the sale of the Registrable Securities by the selling Holders thereof, (iii)
shall comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the applicable
requirements of Regulation S-T under the 1933 Act, if any, and use commercially
reasonable efforts to cause such Shelf Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;


 


(b)           prepare
and file with the SEC such amendments and post-effective amendments to the
Shelf Registration Statement as may be necessary under applicable law to keep
the Shelf Registration Statement effective for the Effectiveness Period,
subject to Section 2.5; and cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the 1933 Act and comply
during the Effectiveness Period with the provisions of the 1933 Act, the 1934
Act and the rules and regulations thereunder required to enable


 


8

















 


the disposition of all Registrable Securities covered by the Shelf
Registration Statement in accordance with the intended method or methods of
distribution by the selling Holders thereof;


 


(c)           (i)
notify each Holder of Registrable Securities of the filing, by issuing a press
release, of a Shelf Registration Statement with respect to the Registrable
Securities; (ii) furnish to each Holder of Registrable Securities that has
provided the information required by Section 2.1(d) and to each underwriter of
an underwritten offering of Registrable Securities, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to facilitate
the unrestricted sale or other disposition of the Registrable Securities; and
(iii) subject to Section 2.5 hereof and to any notice by the Company in
accordance with Section 3(e) hereof of the existence of any fact of the kind
described in Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, hereby
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities that has provided the
information required by Section 2.1(d) in connection with the offering and sale
of the Registrable Securities;


 


(d)           use
commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or “blue sky” laws of such
jurisdictions as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Holder and underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided,
however, that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), or (ii)
take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;


 


(e)           notify
promptly each Holder of Registrable Securities under a Shelf Registration that
has provided the information required by Section 2.1(d) and, if requested by
such Holder, confirm such advice in writing promptly (i) when a Shelf
Registration Statement has become effective and when any post-effective
amendments thereto become effective, (ii) of any request by the SEC or any
state securities authority for post-effective amendments and supplements to a
Shelf Registration Statement and Prospectus or for additional information after
the Shelf Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement is
effective which makes any


 


9

















 


statement made in such Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of any
changes in such Shelf Registration Statement or Prospectus in order to make the
statements therein not misleading, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vi) of any determination by the Company that a
post-effective amendment to such Shelf Registration Statement would be
appropriate;


 


(f)            furnish
to the Initial Purchasers on behalf of the Holders and to special counsel to
the Initial Purchasers copies of (i) any comment letters received from the SEC with
respect to a Shelf Registration Statement or, after the initial filing of a
Shelf Registration Statement and prior to its effectiveness, any documents
incorporated therein and (ii) any other request by the SEC or any state
securities authority for amendments or supplements to a Shelf Registration
Statement and Prospectus or for additional information with respect to the
Shelf Registration Statement and Prospectus;


 


(g)           use
commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Shelf Registration Statement at the earliest
possible moment;


 


(h)           furnish
to each Holder of Registrable Securities that has provided the information
required by Section 2.1(d), and each underwriter, if any, without charge, at
least one conformed copy of each Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested);


 


(i)            cooperate
with the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends (other than as required by the
Company’s certificate of incorporation or bylaws or applicable law); and enable
such Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least three
business days prior to the closing of any sale of Registrable Securities;


 


(j)            upon
the occurrence of any event or the discovery of any facts, each as contemplated
by Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, as promptly as
practicable after the occurrence of such an event, use commercially reasonable
efforts to prepare a supplement or post-effective amendment to the Shelf
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus will
not contain at the time of such delivery any untrue statement of a


 


10

















 


material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or will remain so qualified. At such time as such public
disclosure is otherwise made or the Company determines that such disclosure is
not necessary, in each case to correct any misstatement of a material fact or
to include any omitted material fact, the Company agrees promptly to notify
each Holder that has provided the information required by Section 2.1(d) of
such determination and to furnish each Holder such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably request;


 


(k)           no
less than three business days prior to the filing of any Shelf Registration
Statement, any Prospectus, any amendment to a Shelf Registration Statement or
amendment or supplement to a Prospectus (other than amendments and supplements
that do nothing more than name Holders and provide information with respect
thereto), provide copies of such document to the Initial Purchasers on behalf
of such Holders, and make representatives of the Company, as shall be
reasonably requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders, available for discussion of such document;


 


(l)            provide
the Trustee with printed certificates for the Registrable Securities in a
form eligible for deposit with the Depositary;


 


(m)          (i)
cause the Indenture to be qualified under the 1939 Act in connection with the
registration of the Registrable Securities, (ii) cooperate with the
Trustee and the Holders 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 1939 Act, and (iii) execute, and use commercially 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;


 


(n)           enter
into such customary agreements and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities, including, but not limited to:


 


(i)            obtain opinions of counsel to the
Company and updates thereof addressed to each selling Holder and the
underwriters, if any, covering the matters set forth in the opinions of such
counsel delivered to the Initial Purchasers at the Closing Date;


 


(ii)           obtain “comfort” letters and updates
thereof from the Company’s independent certified public accountants (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 are, or are required to be, included in the Shelf Registration
Statement) addressed to the underwriters, if any, and use commercially
reasonable efforts to have such letter addressed to the 


 


11

















 


selling Holders of Registrable Securities (to
the extent consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accounts), such letters substantially in
the form and covering the matters covered in the comfort letter delivered to
the Initial Purchasers on the Closing Date;


 


(iii)          if an underwriting agreement is
entered into, cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 hereof with respect to the underwriters and
all other parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such underwriters in
similar types of transactions; and


 


(iv)          deliver such documents and
certificates as may be reasonably requested and as are customarily delivered in
similar offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if any.


 


The above shall be done only in
connection with any underwritten offering of Registrable Securities using such
Shelf Registration Statement pursuant to an underwriting or similar agreement
as and to the extent required thereunder, and as reasonably requested by any of
the parties thereto; provided, however, that in no event will an underwritten offering of
Registrable Securities be made without the prior written agreement of the
Company;


 


(o)           if
reasonably requested in connection with a disposition of Registrable
Securities, make available for inspection during business hours by
representatives of the Holders of the Registrable Securities, any underwriters
participating in any disposition pursuant to a Shelf Registration Statement and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Company
reasonably requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Shelf Registration
Statement, and make such representatives of the Company available for
discussion of such documents as shall be reasonably requested by the Initial
Purchasers, in each case as is customary for “due diligence” investigations;
provided that, to the extent the Company, in its reasonable discretion, agrees
to disclose material non-public information, such persons shall first agree in
writing with the Company that any such non-public information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement and such person shall not engage in
trading any securities of the Company until such material non-public
information becomes properly publicly available, unless (i) disclosure of
such information is required by court or administrative order or is necessary
to respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to


 


12

















 


federal securities laws in connection with the filing of any
Registration Statement or the use of any Prospectus referred to in this
Agreement upon a customary opinion of counsel for such persons delivered and
reasonably satisfactory to the Company), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by any such person, (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement, or (v) such non-public
information ceases to be material; and provided further, that the foregoing
inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Holders and the other parties entitled thereto
by special counsel to the Holders;


 


The above shall be done only in connection
with any underwritten offering of Registrable Securities using such Shelf
Registration Statement pursuant to an underwriting or similar agreement as and
to the extent required thereunder, and as reasonably requested by any of the
parties thereto; provided, however,
that in no event will an underwritten offering of Registrable Securities be
made without the prior written agreement of the Company;


 


(p)           a
reasonable time prior to filing the Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to the Shelf Registration
Statement or amendment or supplement to such Prospectus (other than amendments
and supplements that do nothing more than name Holders and provide information
with respect thereto), furnish to Merrill Lynch and one special counsel to the
Initial Purchasers copies of all such documents proposed to be filed and use
its commercially reasonable efforts to reflect in each such document when so
filed with the SEC such comments as Merrill Lynch and such special counsel to
the Initial Purchasers reasonably shall propose within three (3) Business Days
of the delivery of such copies to Merrill Lynch and counsel to the Initial
Purchasers.  In addition, if any Holder shall
so request in writing, a reasonable time prior to filing any such documents,
the Company shall furnish to such Holder copies of all such documents proposed
to be filed and use its reasonable efforts to reflect in each such document
when so filed with the SEC such comments as such Holder reasonably shall
propose within three (3) Business Days of the delivery of such copies to such
Holder;


 


(q)           use
its commercially reasonable efforts to cause all Registrable Securities to be
listed on any securities exchange or inter-dealer quotation system on which
similar debt securities issued by the Company are then listed if requested by the
Majority Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;


 


(r)            otherwise
comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder; and


 


13

















 


(s)           cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter and its
counsel (including any “qualified independent underwriter” that is required to
be retained in accordance with the rules and regulations of the NASD).


 


Without limiting the provisions of Section
2.1(d), the Company may (as a condition to such Holder’s participation in the
Shelf Registration) require each Holder of Registrable Securities to furnish to
the Company such information regarding the Holder and the proposed distribution
by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing.


 


Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event or the discovery of any
facts, each of the kind described in Section 3(e)(ii), (iii), (iv), (v) and
(vi) hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Prospectus included in the Shelf Registration
Statement until such Holder’s receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(j) hereof or written notice from
the Company that the Shelf Registration Statement is again effective and no
amendment or supplement is needed, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in such Holder’s
possession, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.


 


In the event that a Registration Default has
occurred and is continuing, the Company shall not file any Registration
Statement with respect to any securities (within the meaning of Section 2(1) of
the 1933 Act) of the Company other than Registrable Securities.


 


If any of the Registrable Securities covered
by any Shelf Registration Statement are to be sold in an underwritten offering,
the underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be acceptable to the
Company.  No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder’s Registrable Securities on the
basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.


 


4.             Indemnification; Contribution.


 


(a)           The
Company agrees to indemnify and hold harmless the Initial Purchasers, each
Holder who has provided information to the Company in accordance with Section
2.1(d) hereof, each Person who participates as an underwriter (any such Person
being an ”Underwriter”) and each Person, if
any, who controls any Holder or Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:


 


14

















 


(i)            against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any Shelf
Registration Statement (or any amendment or supplement thereto) pursuant to
which Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;


 


(ii)           against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; 
provided that (subject to Section 4(d) below) any such settlement is
effected with the written consent of the Company; and


 


(iii)          against any and all reasonable
out-of-pocket expenses whatsoever, as incurred (including the reasonable fees
and disbursements of counsel chosen by any indemnified party), reasonably
incurred in investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;


 


provided,
however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Holder or underwriter expressly
for use in a Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided, further, that
this indemnity provision shall not apply to any loss, liability, claim, damage
or expense if the Holder fails to deliver at or prior to the written
confirmation of sale the most recent Prospectus furnished to such Holder by the
Company and such Prospectus, as amended or supplemented as of the time of such
confirmation of sale, including any amendment or supplement filed with the SEC
that is incorporated by reference in the Prospectus), would have corrected such
untrue statement or omission or alleged untrue statement or omission of a
material fact and delivery thereof was required by law.


 


15

















 


(b)           Each
Holder who has provided information to the Company in accordance with Section
2.1(d) hereof, severally, but not jointly, agrees to indemnify and hold
harmless the Company, the Initial Purchasers, each Underwriter and the other
selling Holders who have provided information to the Company in accordance with
Section 2.1(d) hereof, and each of their respective directors and officers, and
each Person, if any, who controls the Company, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus included therein (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information with respect to such Holder furnished to the Company by or
on behalf of such Holder expressly for use in the Shelf Registration Statement
(or any amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.


 


(c)           Each
indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect
of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement.  An indemnifying party may participate at its
own expense in the defense of such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party.  In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.  No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.


 


16

















 


(d)           If
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 4(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.


 


(e)           If
the indemnification provided for in this Section 4 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Holders and the Initial
Purchasers on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.


 


The relative fault of the Company on the one
hand and the Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, or by the
Holders or the Initial Purchasers and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.


 


The Company, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 4.  The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 4 shall be deemed to include any reasonable out-of-pocket
legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.


 


Notwithstanding the provisions of this
Section 4, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities sold by
it were offered exceeds the amount of any damages which such Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.


 


17

















 


No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.


 


For purposes of this Section 4, each Person,
if any, who controls an Initial Purchaser or Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Initial Purchaser or Holder, and each director
of the Company, and each Person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. 
The Initial Purchasers’ respective obligations to contribute pursuant to
this Section 4 are several in proportion to the principal amount of Securities
set forth opposite their respective names in Schedule A to the Purchase
Agreement and not joint.


 


5.             Miscellaneous.


 


5.1           Rule 144 and Rule 144A.  For so long as the Company is subject to the
reporting requirements of Section 13 or 15(d) of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under
Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder.  If the Company
ceases to be so required to file such reports, the Company covenants that it
will upon the request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales pursuant to Rule 144
under the 1933 Act, as such Rule may be amended from time to time, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act, as such Rule may be amended from time
to time, and it will take such further action as any Holder of Registrable
Securities may reasonably request for such purpose, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC.  Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such requirements.


 


5.2           No Inconsistent Agreements.  The Company has not entered into and the
Company will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof.  The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company’s other issued
and outstanding securities under any such agreements.


 


5.3           Amendments and Waivers.  The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at
least a majority in aggregate principal amount of the outstanding Registrable
Securities (assuming conversion of all Securities into Common Stock) affected
by such amendment, modification, supplement, waiver or departure.


 


18

















 


Notwithstanding the foregoing, this Agreement
may be amended by a written agreement between the Company and the Initial
Purchasers, without the consent of the Holders of the Registrable Securities,
in order to cure any ambiguity or to correct or supplement any provision
contained herein, provided that no such amendment shall adversely affect the
interest of the Holders of Registrable Securities.  Each Holder of Registrable Securities outstanding
at the time of any amendment, modification, waiver or consent pursuant to this
Section 5.3, shall be bound by such amendment, modification, waiver or consent,
whether or not any notice or writing indicating such amendment, modification,
waiver or consent is delivered to such Holder.


 


5.4           Notices.  All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, facsimile, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder
to the Company in a Questionnaire or by means of a notice given in accordance
with the provisions of this Section 5.4, which address initially is the address
set forth in the Purchase Agreement with respect to the Initial Purchasers; and
(b) if to the Company, initially at the Company’s address set forth in the
Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.


 


All such notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; two business days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged, if sent by facsimile; and on
the next business day if timely delivered to an overnight courier.


 


Copies of all such notices, demands, or other
communications shall be concurrently delivered by the person giving the same to
the Trustee under the Indenture, at the address specified in such Indenture.


 


5.5           Successor and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture.  If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.


 


5.6           Third Party Beneficiaries.  The Initial Purchasers (even if the Initial
Purchasers are not Holders of Registrable Securities) shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder.  Each Holder of Registrable Securities shall
be a third party beneficiary to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers,


 


19

















 


on the other hand, and shall have the right
to enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.


 


5.7           Specific
Enforcement.  Without limiting the
remedies available to the Initial Purchasers and the Holders, the Company
acknowledges that any failure by the Company to comply with its obligations
under Section 2.1 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it may not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may seek such relief as may be required to specifically enforce the Company’s
obligations under Sections 2.1 hereof.


 


5.8           Restriction
on Resales.  Until the expiration of
two years after the original issuance of the Securities, the Company will not,
and will cause its Affiliates not to, resell any Securities that are “restricted
securities” (as such term is defined under Rule 144(a)(3) under the 1933 Act)
that have been reacquired by any of them and shall immediately upon any
purchase of any such Securities submit such Securities to the Trustee for
cancellation.


 


5.9           Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.


 


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


 


5.11         GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


5.12         Severability.  In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.


 


5.13         Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuer with respect to
the Registrable Securities.  This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.


 


20

















 


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


 


 


	
   

  	
  FEI COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raymond A. Link

  
	
   

  	
   

  	
  Name:
  Raymond A. Link

  
	
   

  	
   

  	
  Title:
  EVP, CFO and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Confirmed
  and accepted as

  	
   

  	
   

  
	
  of the date first above

  	
   

  	
   

  
	
  written:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MERRILL
  LYNCH & CO.

  	
   

  	
   

  
	
  MERRILL
  LYNCH, PIERCE, FENNER & SMITH

  	
   

  	
   

  
	
  INCORPORATED

  	
   

  	
   

  
	
  NEEDHAM
  & COMPANY, LLC

  	
   

  	
   

  
	
  THOMAS
  WEISEL PARTNERS LLC

  	
   

  	
   

  
	
  D.A.
  DAVIDSON & CO.

  	
   

  	
   

  
	
  MERRIMAN
  CURHAN FORD & CO.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  MERRILL
  LYNCH, PIERCE, FENNER & SMITH

  	
   

  	
   

  
	
   

  	
  INCORPORATED

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jeff A.
  Shusta

  	
   

  	
   

  
	
   

  	
  Name: Jeff
  A. Shusta

  	
   

  	
   

  
	
   

  	
  Title: Vice
  President