exv4w3



 






Exhibit 4.3




 






Registration Rights Agreement




Dated As of December 13, 2005




between




SafeNet, Inc.




and




Merrill Lynch, Pierce, Fenner & Smith

Incorporated




 







 









 








REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this 13th day
of December, 2005, among SafeNet, Inc., a Delaware corporation (the “Company”) and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the “Initial Purchaser”).



          This Agreement is made pursuant to the Purchase Agreement, dated as of December 7, 2005,
among the Company and the Initial Purchaser (the “Purchase Agreement”), which provides for the
sale by the Company to the Initial Purchaser of an aggregate of $225,000,000 aggregate principal
amount ($250,000,000 principal amount if the Initial Purchaser exercises its option in full) of
the Company’s 2.5% Convertible Subordinated Notes due 2010 (the “Notes” and together with the
shares of common stock of the Company into which the Notes are convertible, the “Securities”).
In order to induce the Initial Purchaser 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 Closing Time as defined in the Purchase
Agreement.




     “Common Stock” shall mean any shares of common stock, $.01 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 the 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.




     “Indenture” shall mean the Indenture relating to the Securities, dated as of
the date hereof, between the Company and Citibank, N.A., 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” 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 (assuming conversion of all
Securities into Common Stock); provided, that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required hereunder,
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.




     “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, and any such prospectus as amended or
supplemented by any prospectus supplement, including any such prospectus supplement 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, including post-effective amendments, and in each case including all materials
incorporated by reference therein.




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



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     “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, 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, if any (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.



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     “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 2.1 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 materials incorporated by
reference therein.




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




     2. Registration Under the 1933 Act.




     2.1 Shelf Registration.




     (a) The Company shall, at its cost, no later than 120 days after the Closing
Date, file with the SEC, and thereafter shall use its reasonable best efforts to
cause to be declared effective as promptly as practicable but no later than 180 days
after the Closing Date, a 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); provided, however, that the Company may, upon written
notice to all Holders, defer the filing or the effectiveness of the Shelf
Registration Statement for a reasonable period not to exceed 60 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 or a committee thereof of the Company 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 reasonable best 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 for a
period of two years from the Closing



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Date, or for such shorter period that will terminate when all Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, when the Holders, other than Affiliates (as defined in the
Indenture) of the Company, are able to sell or transfer to the public all
Registrable Securities immediately without restriction pursuant to Rule 144 (or any
similar provision then in force, including Rule 144(k) but not Rule 144A) under the
1933 Act or when all Registrable Securities cease to be outstanding or otherwise to
be Registrable Securities (the “Effectiveness Period”).




     (c) Notwithstanding any other provisions hereof, the Company shall use its
reasonable best 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 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



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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 reasonable efforts best 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 such 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.




     (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 reasonable efforts to confirm that all of such Holder’s
Registrable Securities have been so sold prior to making such assumption.




     (f) The Company represents and agrees that, unless it obtains the prior consent
of a majority of the Registrable Securities that are registered under the Shelf
Registration Statement at such time or the consent of the



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managing underwriter in connection with any underwritten offering of Registrable
Securities, and each Holder represents and agrees that, unless it obtains the prior
consent of the Company and any such underwriter, it will not make any offer relating
to the Securities that would constitute an “issuer free writing prospectus,” as
defined in Rule 433 (an “Issuer Free Writing Prospectus”), or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed
with the SEC. The Company represents that any Issuer Free Writing Prospectus will
not include any information that conflicts with the information contained in the
Shelf Registration Statement or the Prospectus and, any Issuer Free Writing
Prospectus, when taken together with the information in the Shelf Registration
Statement and the Prospectus, will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.



            The Company shall not permit any securities other than Registrable Securities to be included
in the Shelf Registration Statement, other than the shares of Common Stock of the Company that
are included in the “piggy-back” registration rights granted under that certain Registration
Rights Agreement dated June 10, 2005 among the Company and the persons listed on Schedule 1 to
such Registration Rights Agreement. The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 2.3(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 reasonable
best 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.



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            (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) a Shelf Registration Statement is not filed with
the SEC on or before the 120th calendar day following the Closing Date, (b) a Shelf
Registration Statement is not declared effective on or prior to the 180th calendar day
following the Closing Date, (c) after effectiveness, subject to Section 2.5, the Shelf Registration
Statement fails to be effective or usable by the Holders 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 to be effective or usable, or (d) the Shelf Registration Statement is
unusable by the Holders for any reason, and the number of days for which the Shelf Registration
Statement shall not be usable exceeds the Suspension Period (as defined in Section 2.5 hereof)
(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 from the day 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 (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 securityholder in the Shelf Registration Statement; and provided
further that no Liquidated Damages shall accrue if, pursuant to Section 2.1(a) hereof, the Company
defers the filing or effectiveness of the Shelf Registration Statement for a reasonable period not
to exceed 60 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 committee of the Board of Directors of the Company 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



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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, in
immediately available funds in sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages due shall be payable in arrears 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.



            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 other than the Liquidated Damages with respect to any
Registration Default.



            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.



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            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 securityholders 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 reasonable best 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 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



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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 reasonable best 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 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 Purchaser on behalf of the Holders and to special counsel to the
Initial Purchaser (i) copies of any comment letters received from the SEC with respect to a Shelf
Registration Statement or 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;



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            (g) use reasonable best 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 reasonable best 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 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 Purchaser on behalf of



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such Holders, and make representatives of the Company, as shall be reasonably requested by the
Holders of Registrable Securities or the Initial Purchaser 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) use reasonable best efforts to 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 reasonable best 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 opinion of such counsel delivered 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 reasonable efforts to have such letter addressed to the 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 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,



13









 






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 Purchaser, 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
inquires of regulatory authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws in connection with the
filing of any Shelf 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



14









 







agreement, or (v) such non-public information ceases to be material; 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) at 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 the Initial Purchaser and
one special counsel to the Initial Purchaser copies of all such documents proposed to be filed
and use its reasonable best efforts to reflect in each such document when so filed with the SEC
such comments as the Initial Purchaser and such special counsel to the Initial Purchaser
reasonably shall propose within three (3) Business Days of the delivery of such copies to the
Initial Purchaser and counsel to the Initial Purchaser. In addition, if any Holder that has
provided the information required by Section 2.1(d) 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



            (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



15









 







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 Purchaser, 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



16









 







Person being an “Underwriter”) and each Person, if any, who controls any such Holder or Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:




            (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
any Issuer Free Writing 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 expense 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), any Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto).




17









 








            (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 Purchaser, 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 Purchaser,
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 to so 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,



18









 







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.



            (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 Purchaser 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 Purchaser 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 Purchaser 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 Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata allocation 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.



19









 





     Notwithstanding the provisions of this Section 4, the Initial Purchaser shall not 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 the Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.



     No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
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 the 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.



            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, (b) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933 Act 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



20









 







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. Notwithstanding the
foregoing, this Agreement may be amended by a written agreement between the Company and the
Initial Purchaser, 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 Purchaser; 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.



21









 





            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 Purchaser (even if the Initial Purchaser
is not a Holder of Registrable Securities) shall be a third party beneficiary 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 it deems such enforcement
necessary or advisable to protect its 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 Purchaser, 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
Purchaser 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 Purchaser 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 Purchaser 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.



22









 





            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 LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.



            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.



23









 





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



	 	 	 	 	 
	 	SafeNet, Inc.

 	 
	 	By:  	/s/
A. Caputo	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Confirmed and accepted as

  of the date first above

  written:




MERRILL LYNCH, PIERCE, FENNER & SMITH

                    INCORPORATED




	 	 	 	 	 
	By:
	 	 /s/ Jerry Wu	 	 
	 

	 	 

Name: Jerry Wu
	 	 
	 

	 	Title: Director	 	 







24