exv4w2






Exhibit 4.2



 


 

 






REGISTRATION RIGHTS AGREEMENT




by and among




VECTOR GROUP LTD.




VGR HOLDING LLC

LIGGETT GROUP LLC

LIGGETT VECTOR BRANDS INC.

VECTOR RESEARCH LLC

LIGGETT & MYERS HOLDINGS INC.

LIGGETT & MYERS INC.

100 MAPLE LLC

V.T. AVIATION LLC

VGR AVIATION LLC

EVE HOLDINGS INC.

VECTOR TOBACCO INC.




and




JEFFERIES & COMPANY, INC.




Dated as of December 3, 2010




 

 






 









 





     This Registration Rights Agreement, dated as of December 3, 2010 (this “Agreement”),
is entered into by and among (i) Vector Group Ltd., a Delaware corporation (the “Issuer”),
(ii) VGR Holding LLC, a Delaware limited liability company, Liggett Group LLC, a Delaware limited
liability company, Liggett Vector Brands Inc., a Delaware corporation, Vector Research LLC, a
Delaware limited liability company, Liggett & Myers Holdings Inc., a Delaware corporation, Liggett
& Myers Inc., a Delaware corporation, 100 Maple LLC, a Delaware limited liability company, V.T.
Aviation LLC, a Delaware limited liability company, VGR Aviation LLC, a Delaware limited liability
company, Eve Holdings Inc., a Delaware corporation, and Vector Tobacco Inc., a Virginia corporation
and (iii) Jefferies & Company, Inc. (the “Initial Purchaser”), which has agreed to purchase
$90,000,000 aggregate principal amount of the Issuer’s 11% Senior Secured Notes due 2015 (the
“Series A Notes”) pursuant to the Purchase Agreement (as defined below).



     This Agreement is made pursuant to the Purchase Agreement, dated as of November 30, 2010 (the
“Purchase Agreement”), by and among the Issuer, the Guarantors and the Initial Purchaser.
In order to induce the Initial Purchaser to purchase the Series A Notes, the Issuer and the
Guarantors have agreed to provide, subject to the conditions in this Agreement, the registration
rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in Section 9 of the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in
the Base Indenture, dated August 16, 2007 (the “Base Indenture”), as supplemented by a
First Supplemental Indenture, dated July 15, 2008 (the “First Supplemental Indenture”), a
Second Supplemental Indenture, dated September 1, 2009 (the “Second Supplemental
Indenture”), a Third Supplemental Indenture, dated April 20, 2010 (the “Third Supplemental
Indenture”), and a Fourth Supplemental Indenture to be dated the Closing Date (defined below)
among the Issuer, the Guarantors and U.S. Bank National Association, as Trustee (the
“Trustee”) (the “Fourth Supplemental Indenture” and, together with the Base
Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Third
Supplemental Indenture, the “Indenture”), relating to the Series A Notes and the Series B
Notes (defined below).



     The parties hereby agree as follows:



SECTION 1. DEFINITIONS




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



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



     “Affiliate” has the meaning set forth in Rule 144 of the Act.



     “Agreement” has the meaning set forth in the preamble of this Agreement.



     “Base Indenture” has the meaning set forth in the preamble of this Agreement.



     “Broker-Dealer” means any broker or dealer registered under the Exchange Act.



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     “Business Day” means any day except a Saturday, Sunday or any other day on which
banking institutions in the City of New York, or in the city of the corporate trust office of the
Trustee, are authorized or obligated by law or regulation to close.



     “Closing Date” means the date of this Agreement.



     “Consummate” means, and an Exchange Offer shall be deemed Consummated for purposes of
this Agreement upon, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Series B Notes to be issued in the Exchange
Offer, (b) the maintenance of such Exchange Offer Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the period required pursuant to
Section 3(b) and (c) the delivery by the Issuer to the Registrar under the Indenture of Series B
Notes in the same aggregate principal amount as the aggregate principal amount of Series A Notes
tendered by Holders thereof pursuant to the Exchange Offer.



     “Consummation Deadline” has the meaning set forth in Section 3(a).



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



     “Exchange Offer Effectiveness Deadline” has the meaning set forth in Section 3(a).



     “Exchange Offer Filing Deadline” has the meaning set forth in Section 3(a).



     “Exchange Offer” means the exchange and issuance by the Issuer of a principal amount
of Series B Notes (which shall be registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Series A Notes that are validly tendered by Holders in
connection with such exchange and issuance.



     “Exchange Offer Registration Statement” means the Registration Statement relating to
the Exchange Offer, including the related Prospectus.



     “First Supplemental Indenture” has the meaning set forth in the preamble of this
Agreement.



     “Fourth Supplemental Indenture” has the meaning set forth in the preamble of this
Agreement.



     “Free Writing Prospectus” means each offer to sell or solicitation of an offer to buy
the Series A Notes or the Series B Notes that would constitute a “free writing prospectus” (if the
offering of the Series A Notes or the Series B Notes was made pursuant to a registered offering
under the Act) as defined in Rule 405 under the Act, prepared by or on behalf of the Issuer or used
or referred to by the Issuer in connection with the sale of the Series A Notes or the Series B
Notes.



     “Guarantors” has the meaning set forth in the Indenture.



     “Holders” shall have the meaning set forth in Section 2.



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     “Indemnified Party” has the meaning set forth in Section 8(c).



     “Indemnifying Party” has the meaning set forth in Section 8(c).



     “Indenture” has the meaning set forth in the preamble of this Agreement.



     “Initial Purchaser” has the meaning set forth in the preamble of this Agreement.



     “Issuer” has the meaning set forth in the preamble of this Agreement.



     “Person” means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “Prospectus” means the prospectus included in a Registration Statement at the time
such Registration Statement is declared effective (including without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance on Rule 430A under the Act), as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including (i) post-effective amendments
and (ii) any Free Writing Prospectus, and all material incorporated by reference into such
prospectus.



     “Purchase Agreement” has the meaning set forth in the preamble of this Agreement.



     “Recommencement Date” has the meaning set forth in Section 6(d).



     “Registration Default” has the meaning set forth in Section 5.



     “Registration Statement” means any registration statement of the Issuer and the
Guarantors relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and materials incorporated by reference therein.



     “Rule 144” means Rule 144 promulgated under the Act.



     “SEC” means the Securities and Exchange Commission.



     “Second Supplemental Indenture” has the meaning set forth in the preamble of this
Agreement.



     “Series A Notes” has the meaning set forth in the preamble of this Agreement.



     “Series B Notes” means the Issuer’s 11% Series B Senior Secured Notes due 2015 to be
issued pursuant to the Indenture (a) in the Exchange Offer or (b) as contemplated by Section 4.



     “Shelf Effectiveness Deadline” has the meaning set forth in Section 4(a).



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     “Shelf Filing Deadline” has the meaning set forth in Section 4(a).



     “Shelf Registration Statement” has the meaning set forth in Section 4(a).



     “Suspension Notice” has the meaning set forth in Section 6(d).



     “Third Supplemental Indenture” has the meaning set forth in the preamble of this
Agreement.



     “TIA” means the Trust Indenture Act of 1939 as in effect on the date of the Indenture.



     “Transfer Restricted Securities” means each Series A Note until (i) the date on which
such Series A Note has been exchanged by a Person other than a Broker-Dealer for a Series B Note in
the Exchange Offer; (ii) following the exchange by a Broker-Dealer in the Exchange Offer of a
Series A Note for a Series B Note, the date on which the Series B Note is sold or otherwise
disposed of to a purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration Statement; (iii) the
date on which such Series A Note has been registered under the Act and disposed of in accordance
with the Shelf Registration Statement; or (iv) the date on which such Series A Note is distributed
to the public pursuant to Rule 144, provided that on or prior to such date either (x) the Exchange
Offer has been consummated or (y) a Shelf Registration Statement has been declared effective by the
SEC.



SECTION 2. HOLDERS




     A Person is deemed to be a holder of Transfer Restricted Securities (a “Holder”)
whenever such Person owns Transfer Restricted Securities.



SECTION 3. REGISTERED EXCHANGE OFFER




     (a) Unless the Exchange Offer shall not be permitted by applicable law or SEC policy, the
Issuer and the Guarantors shall (i) cause the Exchange Offer Registration Statement to be filed
with the SEC not later than 240 days after the Closing Date (such 240th day being the “Exchange
Offer Filing Deadline”), (ii) use all commercially reasonable efforts to cause such Exchange
Offer Registration Statement to be declared effective by the SEC not later than 330 days after the
Closing Date (such 330th day being the “Exchange Offer Effectiveness Deadline”), and (iii)
commence the Exchange Offer promptly following the declaration of effectiveness of such Exchange
Offer Registration Statement and use all commercially reasonable efforts to Consummate the Exchange
Offer on or prior to the date 30 Business Days (or longer if there is a change in the federal
securities laws that requires an issuer exchange offer for its debt securities to remain open for
more than 30 Business Days) after the Exchange Offer Registration Statement is declared effective
(such date being the “Consummation Deadline”). The Exchange Offer shall be on the
appropriate form permitting (x) registration of the Series B Notes to be offered in exchange for
the Series A Notes that are Transfer Restricted Securities and (y) resales of Series B Notes by
Broker-Dealers that tendered into the Exchange Offer Series A Notes that such Broker-Dealer
acquired for its own account as a result of market-making activities or other trading activities
(other than Series A Notes acquired directly from the Issuer or any of its Affiliates) as
contemplated by Section 3(c).



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     (b) The Issuer and the Guarantors shall use all commercially reasonable efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under applicable securities
laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Issuer and the Guarantors shall cause the Exchange Offer to comply
with all applicable securities laws. No securities other than the Series B Notes shall be included
in the Exchange Offer Registration Statement.



     (c) The Issuer and the Guarantors shall include a “Plan of Distribution” section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate therein that any
Broker-Dealer who holds Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading activities (other than
Series A Notes acquired directly from the Issuer or any of its Affiliates), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such “Plan of Distribution” section
shall also contain all other information with respect to such sales by such Broker-Dealers that the
SEC may require in order to permit such sales pursuant thereto, but such “Plan of Distribution”
shall not name any such Broker-Dealer or disclose the amount of Transfer Restricted Securities held
by any such Broker-Dealer, except to the extent required by the SEC as a result of a change in
policy, rules or regulations after the date of this Agreement.



     Because any such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the
Act and must, therefore, deliver a prospectus meeting the requirements of the Act in connection
with the initial sale of any Series B Notes received by such Broker-Dealer in the Exchange Offer,
the Issuer and the Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the Prospectus contained in the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers, the Issuer and the Guarantors
agree to use all commercially reasonable efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and subject to the
provisions of Section 6(a) and (c) and in conformity with the requirements of this Agreement, the
Act and the policies, rules and regulations of the SEC as announced from time to time, for a period
of 180 days from the Consummation Deadline or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been sold pursuant
thereto. The Issuer and the Guarantors shall provide sufficient copies of the latest version of
such Prospectus to such Broker-Dealers, promptly upon request, and in no event later than one day
after such request, at any time during such period.



SECTION 4. SHELF REGISTRATION




     (a) Shelf Registration. If (i) the Exchange Offer is not permitted by applicable law
or SEC policy (after the Issuer and the Guarantors have complied with the procedures set forth in
Section 6(a)(iii)(A)) or (ii) any Holder notifies the Issuer prior to the 20th Business Day
following the Consummation Deadline that (A) it is prohibited by law or SEC policy from
participating in the Exchange Offer, (B) it may not resell the Series B Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such resales by such
Holder or (C) it is a Broker-Dealer and holds Series A Notes acquired directly from the Issuer
or any of its Affiliates, then the Issuer and the Guarantors will:



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     (x) use all commercially reasonable efforts to cause to be filed, not later
than 90 days after the earlier of (i) the date on which the Issuer determines that
the Exchange Offer Registration Statement cannot be filed as a result of clause
(a)(i) of this Section 4 and (ii) the date on which the Issuer receives the notice
specified in clause (a)(ii) of this Section 4 (such earlier date, the “Shelf
Filing Deadline”), a shelf registration statement for an offering to be made on
a continuous basis pursuant to Rule 415 under the Act (which may be an amendment to
the Exchange Offer Registration Statement) (the “Shelf Registration
Statement”) relating to all Transfer Restricted Securities; provided, however,
that, notwithstanding this Section 4(a)(x), the Issuer and the Guarantors shall not
be required to file the Shelf Registration Statement prior to the Exchange Offer
Filing Deadline; and




     (y) use all commercially reasonable efforts to cause such Shelf Registration
Statement to become effective not later than 180 days after the earlier of (i) the
date on which the Issuer determines that the Exchange Offer Registration Statement
cannot be filed as a result of clause (a)(i) of this Section 4 and (ii) the date on
which the Issuer receives the notice specified in clause (a)(ii) of this Section 4
(such 180th day the “Shelf Effectiveness Deadline”).



     If, after the Issuer has filed an Exchange Offer Registration Statement that satisfies the
requirements of Section 3(a), the Issuer is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under applicable law
(i.e., clause (a)(i) of this Section 4), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) of this Section 4(a); provided,
however, that in such event, the Issuer shall remain obligated to meet the Shelf Effectiveness
Deadline set forth in clause (y) of this Section 4(a).



     To the extent necessary to ensure that the Shelf Registration Statement is available for sales
of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section
4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii), the
Issuer and the Guarantors shall use all commercially reasonable efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective, supplemented, amended
and current as required by and subject to the provisions of Section 6(b) and (c) and in conformity
with the requirements of this Agreement, the Act and the policies, rules and regulations of the SEC
as announced from time to time, for a period of at least two years (as extended pursuant to Section
6(d)) following the Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been sold pursuant thereto.



     (b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the
Issuer in writing, within 10 days after receipt of a request therefor, the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary prospectus included
therein. No Holder shall be entitled to liquidated damages pursuant to Section 5 unless and until
such Holder shall have provided all such information. Each selling Holder agrees to promptly
furnish additional information as requested by the SEC or as required to be disclosed in order to
make the information previously furnished to the Issuer by such Holder not materially misleading.



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SECTION 5. LIQUIDATED DAMAGES




     If (a) any Registration Statement required by this Agreement is not filed with the SEC on or
prior to the applicable Exchange Offer Filing Deadline or Shelf Filing Deadline, (b) any such
Registration Statement has not been declared effective by the SEC on or prior to the applicable
Exchange Offer Effectiveness Deadline or Shelf Effectiveness Deadline, (c) the Exchange Offer has
not been Consummated on or prior to the Consummation Deadline or (d) the Shelf Registration
Statement or the Exchange Offer Registration Statement is filed and declared effective but
thereafter ceases to be effective or usable in connection with resales of Transfer Restricted
Securities during the periods specified in this Agreement (each such event referred to in clauses
(a) through (d) above, a “Registration Default”), then the Issuer and the Guarantors hereby
jointly and severally agree to pay to each Holder of Transfer Restricted Securities affected
thereby liquidated damages at a rate equal to 0.25% per annum on the outstanding principal amount
of Transfer Restricted Securities held by such Holder with respect to the first 90-day period
immediately following the occurrence of the first Registration Default. The amount of the
liquidated damages shall increase at a rate of 0.25% per annum on the outstanding principal amount
of Transfer Restricted Securities held by such Holder with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum rate of liquidated damages of
1.00% per annum of the outstanding principal amount of Transfer Restricted Securities held by such
Holder; provided, however, that the Issuer and the Guarantors shall in no event be required to pay
liquidated damages for more than one Registration Default at any given time. Notwithstanding
anything to the contrary set forth herein, (i) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) in the case of clause (a) of
this Section 5, (ii) upon the effectiveness of the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement) in the case of clause (b) of this Section 5, (iii)
upon Consummation of the Exchange Offer in the case of clause (c) of this Section 5 or (iv) upon
the filing of a post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) to again be declared effective or made usable in the
case of clause (d) of this Section 5, the liquidated damages payable with respect to the Transfer
Restricted Securities as a result of such clauses (a), (b), (c) or (d) of this Section 5, as
applicable, shall cease.



     All accrued liquidated damages will be paid by the Issuer and the Guarantors to the Holders
entitled thereto, in the manner provided for the payment of interest in the Indenture, on the next
scheduled Interest Payment Date (as such date is defined in the Indenture), as more fully set forth
in the Indenture and the Notes. Notwithstanding the fact that any Notes for which liquidated
damages are due cease to be Transfer Restricted Securities, all obligations of the Issuer and the
Guarantors to pay such accrued liquidated damages with respect to securities shall survive until
such time as such obligations with respect to the Notes have been satisfied in full.
The liquidated damages set forth above shall be the exclusive monetary remedy available to the
Holders for a Registration Default.



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SECTION 6. REGISTRATION PROCEDURES




     (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Issuer and the Guarantors shall (i) comply with all applicable provisions of Section 6(c), (ii) use
all commercially reasonable efforts to effect such exchange and to permit the resale of Series B
Notes by Broker-Dealers that tendered in the Exchange Offer Series A Notes that such Broker-Dealer
acquired for its own account as a result of its market-making activities or other trading
activities (other than Series A Notes acquired directly from the Issuer or any of its Affiliates)
being sold in accordance with the intended method or methods of distribution thereof, and (iii)
comply with all of the following provisions:




     (A) If, following the date hereof, there has been announced a change in SEC
policy with respect to exchange offers such as the Exchange Offer that, in the
reasonable opinion of counsel to the Issuer, raises a substantial question as to
whether the Exchange Offer is permitted by applicable law, the Issuer and the
Guarantors hereby agree to seek a no-action letter or other favorable decision from
the SEC allowing the Issuer and the Guarantors to Consummate an Exchange Offer for
such Transfer Restricted Securities. The Issuer and the Guarantors hereby agree to
pursue the issuance of such a decision to the SEC staff level. In connection with
the foregoing, the Issuer and the Guarantors hereby agree to take all such other
commercially reasonable actions as may be requested by the SEC or otherwise required
in connection with the issuance of such decision, including without limitation (1)
participating in telephonic conferences with the SEC, (2) delivering to the SEC
staff an analysis prepared by counsel to the Issuer setting forth the legal basis,
if any, upon which such counsel has concluded that such an Exchange Offer should be
permitted and (3) diligently pursuing a resolution (which need not be favorable) by
the SEC staff.




     (B) As a condition to its participation in the Exchange Offer, each Holder of
Transfer Restricted Securities (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, if requested by the Issuer, prior to the Consummation
of the Exchange Offer, a written representation to the Issuer and the Guarantors
(which shall be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement or be deemed made by virtue of tendering into the
Exchange Offer pursuant to the provisions of the Exchange Offer Prospectus) to the
effect that (1) it is not an Affiliate of the Issuer, (2) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (3) it is acquiring the Series B Notes in its ordinary course of
business. As a condition to its participation in the Exchange Offer, each Holder
using the Exchange Offer to participate in a distribution of the Series B Notes
shall acknowledge and agree that, if the resales are of Series B Notes obtained by
such Holder in exchange for Series A Notes acquired directly from the Issuer or an
Affiliate thereof, it (x) could not, under
SEC policy as in effect on the date of this Agreement, rely on the position of
the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including, if applicable, any no-action letter
obtained pursuant to clause (a)(iii)(A) of this Section 6) and (y) must comply with
the registration and prospectus delivery requirements of the Act in connection with
a secondary resale transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of Regulation S-K.



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     (C) To the extent required by SEC policies and procedures, prior to
effectiveness of the Exchange Offer Registration Statement, the Issuer and the
Guarantors shall provide a supplemental letter to the SEC (1) stating that the
Issuer and the Guarantors are registering the Exchange Offer in reliance on the
position of the SEC enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5,
1991) as interpreted in the SEC’s letter to Shearman & Sterling dated July
2, 1993, and, if applicable, any no-action letter obtained pursuant to clause
(a)(iii)(A) of this Section 6, (2) including a representation that neither the
Issuer nor any Guarantor has entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in the Exchange Offer and
that, to the best of the Issuer’s and each Guarantor’s information and belief, each
Holder participating in the Exchange Offer is acquiring the Series B Notes in its
ordinary course of business and has no arrangement or understanding with any Person
to participate in the distribution of the Series B Notes received in the Exchange
Offer and (3) any other undertaking or representation required by the SEC as set
forth in any no-action letter obtained pursuant to clause (a)(iii)(A) of this
Section 6, if applicable.



     (b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, the Issuer and the Guarantors shall:




     (i) comply with all the provisions of Section 6(c) and use all commercially reasonable
efforts to effect such registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Issuer pursuant to Section 4(b)), and pursuant
thereto the Issuer and the Guarantors shall prepare and file with the SEC a Registration
Statement relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof; and




     (ii) issue, upon the request of any Holder or purchaser of Series A Notes covered by
any Shelf Registration Statement contemplated by this Agreement, Series B Notes having an
aggregate principal amount equal to the aggregate principal amount of Series A Notes sold
pursuant to the Shelf Registration Statement and surrendered to the
Issuer for cancellation; the Issuer shall register the Series B Notes on the Shelf
Registration Statement for this purpose and issue the Series B Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as such purchaser(s)
shall designate.



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     (c) General Provisions. In connection with any Registration Statement and any related
Prospectus required by this Agreement, the Issuer and the Guarantors shall:




     (i) use all commercially reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the period
specified in Sections 3 or 4 of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading (in the case of the Prospectus or
any supplement thereto, in the circumstances in which they were made) or (B) not to be
effective and usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Issuer and the Guarantors shall file promptly an appropriate
amendment to such Registration Statement or a supplement to the relevant Prospectus curing
such defect, and, if SEC review is required, use all commercially reasonable efforts to
cause such amendment to be declared effective as soon as practicable;




     (ii) prepare and file with the SEC such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such Registration Statement
effective for the period specified in Sections 3 or 4 of this Agreement, as applicable;
cause the Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules
424, 430A, 430B and 462, as applicable, under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;




     (iii) advise the Initial Purchaser and, with respect to a Shelf Registration Statement,
the underwriter(s), if any, and the selling Holders and, if requested by such Persons, to
confirm such advice in writing (which notice shall not contain any material non-public
information, unless such Holder agrees to keep such information confidential) (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the SEC for amendments to
the Registration Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, or (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement in order to make the statements
therein not misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the SEC shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Issuer and the Guarantors shall use all commercially reasonable
efforts to obtain the withdrawal or lifting of such order at the earliest possible time;



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     (iv) subject to Section 6(c)(i), if any fact or event contemplated by Section
6(c)(iii)(D) shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading;




     (v) furnish to (A) the Initial Purchaser, in connection with the Exchange Offer, before
filing with the SEC, copies of any Exchange Offer Registration Statement or any Prospectus
included therein, which documents shall be subject to the review and comment of the Initial
Purchaser for a period of at least three Business Days (unless the Initial Purchaser shall
consent to a shorter period), and the Issuer shall not file any such Exchange Offer
Registration Statement or Prospectus (other than documents incorporated by reference) to
which the Initial Purchaser shall reasonably object within three Business Days after the
Initial Purchaser’s receipt thereof (unless the Initial Purchaser has consented to a shorter
period); and (B) the Initial Purchaser and with respect to a Shelf Registration Statement,
each Holder named in such Shelf Registration Statement, in connection with such exchange or
sale, if any, before filing with the SEC, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such Registration
Statement or Prospectus other than documents incorporated by reference after the initial
filing of such Registration Statement, which documents shall be subject to the review and
comment of such Holders in connection with such sale, if any, for a period of at least five
Business Days, and the Issuer shall not file any such Registration Statement or Prospectus
or any amendment or supplement to any such Registration Statement or Prospectus other than
documents incorporated by reference to which such Holders shall reasonably object within
five Business Days after such Holders’ receipt thereof. A Holder shall be deemed to have
reasonably objected to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make the statements therein
not misleading or fails to comply with the applicable requirements of the Act;



12









 






     (vi) in connection with any underwritten offering, make available, during reasonable
business hours, for inspection by each Holder who would be an “underwriter” as a result of
either (A) the sale by such Holder of Series A Notes covered by such Shelf Registration
Statement or (B) the sale during the period referred to in Section 3(c) and any attorney or
accountant retained by any such Person (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents of the Issuer and the Guarantors
(collectively, “Records”) as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the Issuer’s and the
Guarantor’s officers, directors and employees to supply all information in each case
reasonably requested by any such Inspector, in connection with such Registration Statement
or any post-effective amendment thereto subsequent to the filing thereof and prior to its
effectiveness. Records which the Company determines, in good faith, to be confidential and
any Records which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (X) the disclosure of such Records is necessary to avoid or correct a
material misstatement or omission in such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its effectiveness, (Y) the
release of such Records is required by applicable law or SEC policy or ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (Z) the information in
such Records has been generally available to the public. Each selling Holder of such
Transfer Restricted Securities and each such Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in securities unless and
until such is made generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Issuer and allow the Issuer at its expense to undertake
appropriate action to prevent disclosure of the Records deemed confidential;




     (vii) if requested by any Holders in connection with such exchange or sale, promptly
include in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such Holders may reasonably
request to have included therein, including, without limitation, information relating to the
“Plan of Distribution” of the Transfer Restricted Securities; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable after the
Issuer is notified of the matters to be included in such Prospectus supplement or
post-effective amendment;




     (viii) furnish to each Holder in connection with such exchange or sale without charge,
at least one copy of the Registration Statement, as first filed with the SEC, and of each
amendment thereto, including all documents incorporated by reference therein and all
exhibits, including exhibits incorporated therein by reference, if so requested by such
Holder;




     (ix) deliver to each Holder without charge, as many copies of the Prospectus (including
any preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Issuer and the Guarantors hereby consent to the
use (in accordance with law) of the Prospectus and any amendment or supplement thereto
by each selling Holder in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement thereto;



13









 






     (x) prior to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the applicable Registration Statement; provided,
however, that neither the Issuer nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction where it is not now
so subject;




     (xi) in connection with any sale of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, (A) cooperate with the
Holders to facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any restrictive legends and (B)
register such Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;




     (xii) use all commercially reasonable efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (x) of this Section 6(c);




     (xiii) pursuant to the terms of the Indenture, issue, upon the request of any Holder of
Series A Notes covered by the Shelf Registration Statement, Series B Notes, having an
aggregate principal amount equal to the aggregate principal amount of Series A Notes
surrendered to the Company by such Holder in exchange therefor or being sold by such Holder;
such Series B Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Series A Notes held by such
Holder shall be surrendered to the Company for cancellation;




     (xiv) provide a CUSIP number for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such Transfer Restricted Securities and
provide the Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the Depository Trust
Company;




     (xv) cooperate and assist in any filings required to be made with the Financial
Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due
diligence investigation by any underwriter (including any “qualified independent
underwriter”) that is required to be retained in accordance with the rules and
regulations of the FINRA;



14









 






     (xvi) otherwise use all commercially reasonable efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to the Holders with regard to
any applicable Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited) covering a
twelve-month period beginning after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 under the Act); and




     (xvii) provide promptly to each Holder, upon request, each document filed with the SEC
pursuant to the requirements of Sections 13 or 15(d) of the Exchange Act.



     (d) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section 6(c)(iii)(C) or any
notice from the Issuer of the existence of any fact of the kind described in Section 6(c)(iii)(D)
(in each case, a “Suspension Notice”), such Holder shall forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable Registration Statement until (i) such
Holder has received copies of the supplemented or amended Prospectus contemplated by Section
6(c)(iv), or (ii) such Holder is advised in writing by the Issuer that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the “Recommencement Date”).
Each Holder receiving a Suspension Notice hereby agrees that it shall either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder’s possession which have been
replaced by the Issuer with more recently dated Prospectuses or (ii) deliver to the Issuer (at the
Issuer’s expense) all copies, other than permanent file copies, then in such Holder’s possession of
the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt
of the Suspension Notice. The time period regarding the effectiveness of such Registration
Statement set forth in Sections 3 or 4 herein, as applicable, shall be extended by a number of days
equal to the number of days in the period from and including the date of delivery of the Suspension
Notice to the Recommencement Date.



     (e) Participation in Underwritten Registration. In the event of an offer and sale of
Transfer Restricted Securities pursuant to an underwriting agreement and Registration Statement
contemplated by this Agreement, no Holder may participate in such offer and sale unless such Holder
(i) agrees to sell such Holder’s Transfer Restricted Securities on the basis provided in the
underwriting arrangements approved by the Persons entitled to approve such arrangements and (ii)
completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the terms of the
underwriting arrangements.



15









 





SECTION 7. REGISTRATION EXPENSES




     (a) All expenses incident to the Issuer’s and the Guarantors’ performance of or compliance
with this Agreement shall be borne by the Issuer and the Guarantors, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery Service and telephone; (iv) all fees and disbursements of
counsel for the Issuer and the Guarantors and, subject to the limitations in Section 7(b), the fees
and disbursements of counsel for the Holders of Transfer Restricted Securities; (v) all application
and filing fees in connection with listing the Series B Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all fees and disbursements
of independent certified public accountants of the Issuer and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to such performance).



     The Issuer (or the Issuer and the Guarantors) shall, in any event, bear its and the
Guarantors’ internal expenses (including, without limitation, all salaries and expenses of their
officers and employees performing legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts, retained by the Issuer or the
Guarantors.



     (b) In connection with any Registration Statement contemplated or required by this Agreement,
as applicable (including, without limitation, the Exchange Offer Registration Statement and the
Shelf Registration Statement), the Issuer and the Guarantors shall reimburse the Initial Purchaser
and the Holders of Transfer Restricted Securities who are tendering Series A Notes in the Exchange
Offer and/or selling or reselling Series A Notes or Series B Notes pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements in an amount not to exceed
$10,000 of not more than one counsel, who shall be Latham & Watkins LLP unless another firm shall
be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared.



SECTION 8. INDEMNIFICATION




     (a) The Issuer and the Guarantors, jointly and severally, agree to indemnify and hold harmless
each Holder, its directors, officers and each Person, if any, who controls such Holder (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities and judgments (including without limitation, any reasonable
legal or other expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, preliminary prospectus, Prospectus, (or any amendment or supplement
thereto) or any “issuer information” (as defined in Rule 433 of the Act) provided by the Issuer to
any Holder or any prospective purchaser of Series B Notes or registered Series A Notes, or caused
by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by, arise out of, or are based on an untrue statement
or omission or alleged untrue statement or omission (i) made in reliance upon and in conformity
with written information furnished to the Issuer or Guarantors by or on behalf of such Holder or
any underwriter with respect to such
Holder, expressly for use in the Registration Statement (or any amendment or supplement
thereto) or any Prospectus (or any amendment or supplement thereto) or (ii) contained in any
preliminary prospectus if such Holder or such underwriter failed to send or deliver a copy of the
Prospectus (in the form it was first provided to such parties for confirmation of sales) to the
person asserting such losses, claims, damages or liabilities on or prior to the delivery of such
written confirmation of any sale of securities covered thereby to such party in any case where the
Issuer shall have previously furnished copies thereof to such Holder or such underwriter, as the
case may be, in accordance with this Agreement, at or prior to the written confirmation of the sale
of such securities to such party and the untrue statement contained in or the omission from the
preliminary prospectus was corrected in or the omission from the preliminary prospectus was
corrected in the Prospectus (or any amendment or supplement thereto). Any amounts advanced by the
Issuer to an indemnified party pursuant to this Section 8 as a result of such losses shall be
returned to the Issuer if it shall be finally determined by a court of competent jurisdiction in a
judgment not subject to appeal or final review that such indemnified party was not entitled to
indemnification by the Issuer.



16









 





     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuer
and the Guarantors, and their respective directors and officers, and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Issuer, or the Guarantors to the same extent as the foregoing indemnity from the Issuer and the
Guarantors set forth in Section 8(a), but only with reference to information relating to such
Holder furnished in writing to the Issuer by or on behalf of such Holder expressly for use in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto). In no event shall any Holder, its directors, officers or any Person who controls such
Holder be liable or responsible for any amount in excess of the total amount received by such
Holder with respect to its sale of Transfer Restricted Securities giving rise to the
indemnification obligation.



     (c) In case any action shall be commenced involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b) (the “Indemnified Party”), the Indemnified
Party shall promptly notify the person against whom such indemnity may be sought (the
“Indemnifying Party”) in writing and the Indemnifying Party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to the Indemnified Party
and the payment of all fees and expenses of such counsel, as incurred (except that in the case of
any action in respect of which indemnity may be sought pursuant to both Sections 8(a) and 8(b), a
Holder shall not be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the fees and expenses
of such counsel, except as provided below, shall be at the expense of the Holder). Any Indemnified
Party shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of the
Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized
in writing by the Indemnifying Party and the Indemnifying Party has agreed in writing to pay the
fees and expenses of such counsel, (ii) the Indemnifying Party shall have failed to assume the
defense of such action or employ counsel reasonably satisfactory to the Indemnified Party or (iii)
the named parties to any such action (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been advised by such counsel
that there may be one or more legal defenses available to it
which are different from or additional to those available to the Indemnifying Party (in which
case the Indemnifying Party shall not have the right to assume the defense of such action on behalf
of the Indemnified Party). In any such case, the Indemnifying Party shall not, in connection with
any one action or separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local counsel) for all
Indemnified Parties and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by a majority of the Holders, in the case of the parties
indemnified pursuant to Section 8(a), and by the Issuer, in the case of parties indemnified
pursuant to Section 8(b). The Indemnifying Party shall indemnify and hold harmless the Indemnified
Party from and against any and all losses, claims, damages, liabilities and judgments by reason of
any settlement of any action effected with its written consent, which consent shall not be withheld
unreasonably. No Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement or compromise of, or consent to the entry of judgment with respect to,
any pending or threatened action in respect of which the Indemnified Party is or could have been a
party and indemnity or contribution may be or could have been sought hereunder by the Indemnified
Party, unless such settlement, compromise or judgment (i) includes an unconditional release of the
Indemnified Party from all liability on claims arising out of such action 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 the
Indemnified Party.



17









 





     (d) To the extent that the indemnification provided for in this Section 8 is unavailable to an
Indemnified Party in respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Issuer and the Guarantors, on the one hand, and the Holders, on
the other hand or (ii) if the allocation provided by Section 8(d)(i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
Section 8(d)(i) but also the relative fault of the Issuer and the Guarantors, on the one hand, and
of the Holder, on the other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Issuer and the Guarantors, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer or such Guarantor, on the one hand,
or by the Holder, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.



     The Issuer, the Guarantors and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending
any matter, including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Series A Notes exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective principal amount of Transfer
Restricted Securities held by each Holder hereunder and not joint. No party shall be liable for
contribution with respect to any action or claim settled without its prior written consent;
provided, however, that such written consent was not unreasonably withheld.



18









 





SECTION 9. RULE 144A AND RULE 144




     The Issuer and the Guarantors agree with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Issuer or the Guarantors (i) are
not subject to Section 13 or 15(d) of the Exchange Act, to make available upon request of any
Holder, to such Holder or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144A; and (ii) are
subject to Section 13 or 15(d) of the Exchange Act, to make all filings required thereby in a
timely manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.



SECTION 10. JOINDER OF FUTURE GUARANTORS




     In order to facilitate the purposes of this Agreement, the Issuer and Guarantors agree that,
if at any time prior to the termination of this Agreement, Issuer or any Guarantor (as defined in
the Indenture) creates or acquires any subsidiary that is required by the Indenture to become a
Guarantor thereunder, they shall cause such subsidiary to execute a joinder to, and thereby become
a party to and Guarantor under, this Agreement.



SECTION 11. MISCELLANEOUS




     (a) Remedies. The Issuer and the Guarantors acknowledge and agree that any failure by
the Issuer and/or the Guarantors to comply with their respective obligations under Sections 3 and 4
may result in material irreparable injury to the Initial Purchaser or the Holders for which there
is no adequate remedy at law, that it will 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
obtain such relief as may be required to specifically enforce the Issuer’s and the Guarantors’
obligations under Sections 3 and 4. The Issuer and the Guarantors further agree to waive the
defense in any action for specific performance that a remedy at law would be adequate.



19









 





     (b) Free Writing Prospectus. The Issuer and the Guarantors represent, warrant and
covenant that they (including their agents and representatives) will not prepare, make, use,
authorize, approve or refer to any “written communication” (as defined in Rule 405 under the
Securities Act) in connection with the issuance and sale of the Series A Notes and the Series B
Notes, other than (i) any communication pursuant to Rule 134, Rule 135 or Rule 135c under the
Securities Act, (ii) any document constituting an offer to sell or solicitation of an offer to buy
the Series A Notes and the Series B Notes that falls within the exception from the definition of
prospectus in Section 2(a)(10)(a) of the Securities Act or (iii) a prospectus satisfying the
requirements of section 10(a) of the Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule
431 under the Act.



     (c) No Inconsistent Agreements. Neither the Issuer nor the Guarantors shall, on or
after the date of this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions of this Agreement. Neither the Issuer nor any Guarantor is a party to any agreement
granting any registration rights with respect to its securities to any Person. The rights granted
to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Issuer’s and the Guarantors’ securities under any agreement in effect
on the date hereof.



     (d) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the provisions of this
Agreement may not be given unless (i) in the case of Section 5 and this Section 11(d)(i), the
Issuer has obtained the written consent of Holders of all outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions of this Agreement, the Issuer has obtained
the written consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the Issuer or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to or departure from the
provisions hereof that relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does not affect directly or
indirectly the rights of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities subject to such Exchange Offer.



     (e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), fax, telex, telecopier, or air courier guaranteeing overnight delivery:




     (i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture.







20





















 






     (ii) if to the Initial Purchaser:




			
	                         	 	Jefferies & Company, Inc.

520 Madison Avenue

New York, New York 10022

Attention: General Counsel

Fax: (212) 284-2280


with a copy to:


Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, California 90071

Attn: Mary Ellen Kanoff and Cynthia A. Rotell

Fax: (213) 891-8763






     (iii) if to the Issuer or any Guarantor:




			
	                         	 	Vector Group Ltd.

100 S. E. 2nd Street, 32nd Floor

Miami, Florida 33131

Attention: Richard J. Lampen and Marc N. Bell, Esq.

Fax: (305) 579-8009


with a copy to each of the following:


Goodwin Procter LLP

Exchange Place

Boston, Massachusetts 02109

Attention: James P.C. Barri

Fax: (617) 523-1231


O’Melveny & Myers LLP

400 South Hope Street

Los Angeles, CA 90071

Attention: Eric R. Reimer

Fax: (213) 430-6407





     All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if sent by fax, and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.



     Any party, by notice to the other parties may designate additional or different addresses for
notices hereunder.



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



21








 









     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such Transfer Restricted
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.



     (g) Counterparts. This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.



     (h) Headings; Section References. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of this Agreement. Unless
otherwise indicated, references in this agreement to Sections are to the sections of this
Agreement.



     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.



     (j) 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.



     (k) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Issuer and the Guarantors, 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 they may deem such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.



     (l) 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 with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.



(signature pages follow)




22









 








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



	 	 	 	 	 
	 	Very truly yours,





Issuer:

 	 
	 



	 	 	 	 	 
	 	VECTOR GROUP LTD.

 	 
	 	By:  	/s/ Richard J. Lampen
 	 
	 	 	Name:  	Richard J. Lampen 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	Guarantors:





VGR HOLDING LLC

 	 
	 	By:  	/s/ Marc N. Bell
 	 
	 	 	Name:  	Marc N. Bell 	 
	 	 	Title:  	Manager 	 
	 



	 	 	 	 	 
	 	LIGGETT GROUP LLC

 	 
	 	By:  	/s/ Ronald J. Bernstein
 	 
	 	 	Name:  	Ronald J. Bernstein 	 
	 	 	Title:  	Manager/President and Chief Executive

Officer 	 
	 



	 	 	 	 	 
	 	LIGGETT VECTOR BRANDS INC.

 	 
	 	By:  	/s/ Ronald J. Bernstein
 	 
	 	 	Name:  	Ronald J. Bernstein 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 




(Signature Page to Registration Rights Agreement)






 









 








	 	 	 	 	 
	 	VECTOR RESEARCH LLC.

 	 
	 	By:  	/s/ Francis G. Wall
 	 
	 	 	Name:  	Francis G. Wall 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	VECTOR TOBACCO INC.

 	 
	 	By:  	/s/ Francis G. Wall
 	 
	 	 	Name:  	Francis G. Wall 	 
	 	 	Title:  	Vice President – Finance 	 
	 



	 	 	 	 	 
	 	LIGGETT & MYERS HOLDINGS INC.

 	 
	 	By:  	/s/ Marc N. Bell
 	 
	 	 	Name:  	Marc N. Bell 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	LIGGETT & MYERS INC.

 	 
	 	By:  	/s/ Ronald J. Bernstein
 	 
	 	 	Name:  	Ronald J. Bernstein 	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	100 MAPLE LLC

 	 
	 	By:  	/s/ Ronald J. Bernstein
 	 
	 	 	Name:  	Ronald J. Bernstein 	 
	 	 	Title:  	Manager 	 
	 



	 	 	 	 	 
	 	V.T. AVIATION LLC

 	 
	 	By:  	/s/ Francis G. Wall
 	 
	 	 	Name:  	Francis G. Wall 	 
	 	 	Title:  	Vice President – Finance 	 
	 



(Signature Page to Registration Rights Agreement)




 









 








	 	 	 	 	 
	 	VGR AVIATION LLC

 	 
	 	By:  	/s/ Francis G. Wall
 	 
	 	 	Name:  	Francis G. Wall 	 
	 	 	Title:  	Vice President – Finance 	 
	 



	 	 	 	 	 
	 	EVE HOLDINGS INC.

 	 
	 	By:  	/s/ Marc N. Bell
 	 
	 	 	Name:  	Marc N. Bell 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Registration Rights Agreement)




 









 








Accepted and Agreed to:




JEFFERIES & COMPANY, INC.




	 	 	 	 	 
	 	 
	By:  	                       /s/ David Losito
 	 
	 	Name:  	David Losito 	 
	 	Title:  	Managing Director 	 
	 



(Signature Page to Registration Rights Agreement)