Exhibit 4.9


 






 


 


Registration Rights Agreement


 


Dated as of April 7, 2010


 


by and among


 


FGI Holding Company, Inc.


 


and


 


Freedom Group, Inc.,


 


on the one hand,


 


and


 


Banc of America Securities LLC


and


Deutsche Bank Securities Inc.


 


on the other hand


 


 






 

















 


REGISTRATION RIGHTS AGREEMENT


 


This REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into on April 7,
2010 (the “Closing Date”), by and
among FGI HOLDING COMPANY, INC., a Delaware corporation (the “Company”), and FREEDOM GROUP, INC., a
Delaware corporation (the “Guarantor”),
on the one hand, and BANC OF AMERICA SECURITIES LLC and DEUTSCHE BANK
SECURITIES INC. (the “Initial Purchasers”),
on the other hand.


 


This Agreement is made pursuant to that certain
Purchase Agreement, dated March 30, 2010 by and among the Company, the
Guarantor and the Initial Purchasers (the “Purchase
Agreement”), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $225,000,000 in principal amount of the
Company’s 11.25%/11.75% Senior Pay-In-Kind Notes due 2015 (the “Notes”), which are guaranteed by the
Guarantor. In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantor have agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.


 


NOW, THEREFORE,
in consideration of the foregoing premises and the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties hereto covenant and 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 1934, as amended from time to time.


 


“Additional
Interest” shall have the meaning set forth in Section 2.5(a) hereof.


 


“Automatic Shelf
Registration Statement” shall mean an “automatic shelf registration
statement” as that term is defined in Rule 405, as amended, under the 1933
Act.


 


“Business Day”
shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed.


 


“Closing”
shall mean the Closing Date as defined in the Purchase Agreement.


 


“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.


 

















 


“Effectiveness
Period” shall have the meaning set forth in Section 2.2(b).


 


“Event Date”
shall have the meaning set forth in Section 2.5(b).


 


“Exchange Dates”
shall have the meaning set forth in Section 2.1.


 


“Exchange Notes”
shall mean the new notes to be exchanged for Transfer Restricted Notes, not
subject to restrictions on transfer in the United States.


 


“Exchange Offer”
shall mean the exchange offer by the Company and the Guarantor of Exchange
Notes for Transfer Restricted Notes pursuant to Section 2.1 hereof.


 


“Exchange Offer
Registration” shall mean a registration under the 1933 Act effected
pursuant to Section 2.1 hereof.


 


“Exchange Offer
Registration Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form),
and all amendments and supplements to such registration statement, including
the Prospectus contained therein, all exhibits thereto and all documents
incorporated by reference therein.


 


“Free Writing
Prospectus” means each free writing prospectus (as defined in Rule 405
under the 1933 Act) prepared by or on behalf of the Company or used or referred
to by the Company in connection with the sale of the Notes or the Exchange
Notes.


 


“Freely Tradable”
shall mean, with respect to a Note, a Note that at any time of determination (i) may
be resold to the public in accordance with Rule 144 under the 1933 Act or
any successor provision thereof (“Rule 144”)
without regard to volume, manner of sale or any other restrictions contained in
Rule 144 (other than the holding period requirement in paragraph (d)(1)(ii) of
Rule 144 so long as such holding period requirement is satisfied at such
time of determination), (ii) does not bear any restrictive legends
relating to the 1933 Act and (iii) does not bear a restricted CUSIP
number.


 


“Guarantor”
shall have the meaning set forth in the preamble and shall also include any
successors to the Guarantor.


 


“Holder”
shall mean an Initial Purchaser, for so long as it owns any Transfer Restricted
Notes, and each of its successors, assigns and direct and indirect transferees
who become registered owners of Transfer Restricted Notes under the Indenture
and each Participating Broker-Dealer that holds Exchange Notes for so long as
such Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such Exchange
Notes.


 


“Indenture”
shall mean that certain Indenture, relating to the Notes, dated as of April 7,
2010, among the Company, the Guarantor and Wilmington Trust, FSB, as trustee,
as the same may be amended, supplemented, waived or otherwise modified from
time to time in accordance with the terms thereof.


 


2

















 


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


 


“Issuer
Information” shall have the meaning set forth in Section 4(a)(i).


 


“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of
outstanding Transfer Restricted Notes; provided that whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Notes is required hereunder, Transfer Restricted Notes held by the Company and
other obligors on the Notes or any Affiliate (as defined in the Indenture) of
the Company or the Guarantor shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage
amount; provided, further, that if the Company shall issue
any additional Notes under the Indenture prior to consummation of the Exchange
Offer, or if applicable, prior to the effectiveness of any Shelf Registration
Statement or prior to the Transfer Restricted Notes otherwise becoming Freely
Tradable, such additional Notes and the Transfer Restricted Notes to which this
Agreement relates shall be treated together as one class for purposes of
determining whether the consent or approval of Holders of a specified
percentage of Transfer Restricted Notes has been obtained.


 


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


 


“Participating
Broker-Dealer” shall mean any of the Initial Purchasers and any
other broker-dealer which makes a market in the Notes and exchanges Transfer
Restricted Notes in the Exchange Offer for Exchange Notes.


 


“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, or, pursuant to the rules and
regulations of the 1933 Act, deemed a part of, a 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
Transfer Restricted Notes 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 material incorporated by reference therein.


 


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


 


“Registration
Default” shall have the meaning set forth in Section 2.5(a).


 


“Registration
Expenses” shall mean any and all expenses incident to performance of
or compliance by the Company and the Guarantor with this Agreement, including
without limitation: (i) all SEC, stock exchange or Financial Industry
Regulatory Authority (“FINRA”)
registration and filing fees, including, if applicable, the fees and expenses
of any “qualified independent underwriter” that is required to be retained by
any holder of Transfer Restricted Notes in accordance with the rules and
regulations of FINRA, (ii) all fees and expenses incurred in connection


 


3

















 


with
compliance with state securities or blue sky laws and compliance with the rules of
FINRA (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Transfer Restricted Notes and any filings with FINRA), (iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
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 Transfer Restricted Notes on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Company and the Guarantor and of the
independent public accountants of the Company and the Guarantor, including the
expenses of any special audits or “cold comfort” letters required by or
incident to such performance and compliance, and in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel
for the Holders as a group (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchasers), (vii) the
fees and expenses of the Trustee (including the reasonable fees and
disbursements of its counsel), and any escrow agent or custodian, (viii) all
fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, and (ix) any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of
securities and the fees and expenses of any special experts retained by the
Company and the Guarantor in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Transfer Restricted Notes by a Holder.
Notwithstanding the foregoing, except as specifically provided above, the
Company and the Guarantor shall not be responsible for the fees and expenses of
the Initial Purchasers in connection with the Exchange Offer, or the fees and
expenses of counsel to the Initial Purchasers in connection therewith.


 


“Registration
Statement” shall mean any registration statement of the Company and
the Guarantor which covers any of the Exchange Notes or Transfer Restricted
Notes pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein or deemed a
part thereof, all exhibits thereto and all material incorporated by reference therein.


 


“Registration
Trigger Date” means the fifth Business Day following the one year
anniversary of the date hereof.


 


“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 2.2.


 


“Shelf Registration
Statement” shall mean a “shelf” registration statement of the
Company and the Guarantor pursuant to the provisions of Section 2.2,
including an Automatic Shelf Registration Statement, if applicable, which
covers all or a portion of the Transfer Restricted Notes on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be


 


4

















 


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 or deemed a part thereof, all exhibits thereto and all
material incorporated by reference therein.


 


“Shelf Request”
shall have the meaning set forth in Section 2.2(a)(ii).


 


“TIA”
shall have the meaning set forth in Section 2.1(d) hereof.


 


“Transfer
Restricted Notes” shall mean the Notes; provided, however,
that the Notes shall cease to be Transfer Restricted Notes on the earliest to
occur of (i) the date on which a Registration Statement with respect to
such Notes has become effective under the 1933 Act and such Notes have been
exchanged or disposed of pursuant to such Registration Statement, (ii) the
date on which such Notes cease to be outstanding under the Indenture or (iii) the
date on which such Notes are Freely Tradable.


 


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


 


“Underwriter”
shall have the meaning set forth in Section 4(a).


 


“WKSI”
shall mean a “well-known seasoned issuer” as that term is defined in Rule 405,
as amended, under the 1933 Act.


 


2.             Registration
Under the 1933 Act.


 


2.1           Exchange
Offer.


 


(a)           To
the extent not prohibited by any applicable law or applicable interpretations
of the staff of the SEC, with respect to any Notes, if any, that on the
Registration Trigger Date are Transfer Restricted Notes, the Company and the
Guarantor shall use commercially reasonable efforts to (X) cause to be
filed and to become effective an Exchange Offer Registration Statement covering
an offer to the Holders to exchange all the Transfer Restricted Notes for
Exchange Notes and (Y) have such Registration Statement remain effective
until 90 days after the last Exchange Date for use by one or more Participating
Broker Dealers if one or more broker dealers notify the Company in writing that
they anticipate that they will be Participating Broker Dealers. The Company and
the Guarantor shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement is declared effective by the SEC and use
commercially reasonable efforts to complete the Exchange Offer not later than
45 days after such effective date.


 


(b)           The
Company and the Guarantor shall, for the benefit of the Holders, at the Company’s
and Guarantor’s cost, commence the Exchange Offer, if any, by mailing the
related Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law, substantially the following:


 


(i)            that
the Exchange Offer is being made pursuant to this Agreement and that all
Transfer Restricted Notes validly tendered and not properly withdrawn will be
accepted for exchange;


 


5














 


(ii)           the
dates of acceptance for exchange (which shall be a period of at least 20
Business Days from the date such notice is mailed) (the “Exchange Dates”);


 


(iii)          that
any Transfer Restricted Notes not tendered will remain outstanding and continue
to accrue interest but will not retain any rights under this Agreement, except
as otherwise specified herein;


 


(iv)          that
any Holder electing to have a Transfer Restricted Note exchanged pursuant to
the Exchange Offer will be required to (A) surrender such Transfer
Restricted Note, together with the appropriate letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, The City
of New York) and in the manner specified in the notice, or (B) effect such
exchange otherwise in compliance with the applicable procedures of the
Depositary, in each case prior to the close of business on the last Exchange
Date; and


 


(v)           that
any Holder will be entitled to withdraw its election, not later than the close
of business on the last Exchange Date, by (A) sending to the institution
and at the address specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Transfer Restricted Notes delivered for exchange and a statement that
such Holder is withdrawing its election to have such Transfer Restricted Notes
exchanged or (B) effecting such withdrawal in compliance with the
applicable procedures of the Depositary.


 


(c)           Upon
the effectiveness of the Exchange Offer Registration Statement, if any, the
Company and the Guarantor shall promptly commence the Exchange Offer, it being
the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Transfer Restricted Notes for Exchange Notes (assuming
that such Holder makes representations and warranties to the Company that (a) it
is not an affiliate of the Company within the meaning of Rule 405 under
the 1933 Act or, if an affiliate, such Holder will comply with the registration
and prospectus delivery requirements of the 1933 Act and will provide
information to be included in a Shelf Registration Statement in order to have
its Exchange Notes included in such Shelf Registration Statement, (b) any
Exchange Notes to be received by it will be acquired in the ordinary course of
its business, (c) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Exchange
Notes, (d) if such Holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Transfer Restricted Notes acquired as
a result of market-making or other trading activities, then such broker-dealer
will deliver a prospectus (or, to the extent permitted by law, make available a
Prospectus) in connection with any resale of such Exchange Notes, and (e) it
has no arrangements or understandings with any Person to participate in the
distribution of the Transfer Restricted Notes or the Exchange Notes) to
transfer such Exchange Notes from and after their receipt without any
limitations or restrictions under the 1933 Act and under state securities or
blue sky laws.


 


(d)           The
Exchange Notes, if any, shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as
amended (the “TIA”), or is exempt
from such qualification and shall provide that the Exchange Notes shall not be
subject to the transfer restrictions set forth in the Indenture. The Exchange
Notes and the Notes shall vote and consent


 


6

















 


together
on all matters as one class and none of the Exchange Notes or the Notes will
have the right to vote or consent as a separate class on any matter.


 


(e)           As
soon as practicable after the close of the Exchange Offer, the Company and the
Guarantor shall:


 


(i)            accept
for exchange all Transfer Restricted Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of transmittal which shall
be an exhibit thereto;


 


(ii)           deliver
to the Trustee for cancellation all Transfer Restricted Notes so accepted for
exchange; and


 


(iii)          cause
the Trustee promptly to authenticate and deliver Exchange Notes to each Holder
of Transfer Restricted Notes so accepted for exchange in a principal amount
equal to the principal amount of the Transfer Restricted Notes of such Holder
so accepted for exchange.


 


(f)            Interest
on each Exchange Note, including Additional Interest, will accrue (a) from
the later of (i) the last date on which interest was paid on the Transfer
Restricted Notes surrendered in exchange therefor or (ii) if the Transfer
Restricted Notes are surrendered for exchange on a date in a period which
includes the record date for an interest payment date to occur on or after the
date of such exchange and as to which interest will be paid, the date of such
interest payment date or (b) if no interest has been paid on the Transfer
Restricted Notes, from the date of issuance. If requested in writing the
Company shall inform the Initial Purchasers of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have
the right, but not the obligation, to contact such Holders and otherwise
facilitate the tender of Transfer Restricted Notes in the Exchange Offer.


 


(g)           The
Company and the Guarantor shall use commercially reasonable efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Offer shall not be
subject to any conditions, other than (1) the Exchange Offer does not
violate any applicable law or applicable interpretations of the staff of the
SEC, (2) no action or proceeding shall have been instituted or threatened
in any court or by any governmental agency with respect to the Exchange Offer
and (3) all governmental approvals shall have been obtained that the
Company deems necessary for the consummation of the Exchange Offer.


 


2.2           Shelf
Registration.


 


(a)           If,


 


(i)            the
Company and the Guarantor would otherwise be required to consummate an Exchange
Offer Registration pursuant to Section 2.1 but determine that such
Exchange Offer Registration is not available or the Exchange Offer may not be
completed


 


7

















 


as soon as practicable after the last Exchange Date
because it would violate any applicable law, SEC rules and regulations or
any interpretation of the staff of the SEC,


 


(ii)           the
Exchange Offer is not for any other reason completed by the 45th day following
the date the Exchange Offer Registration Statement is declared effective, or


 


(iii)          any
Initial Purchaser notifies the Company that it holds Transfer Restricted Notes
that, in the opinion of counsel for such Holder, are not Freely Tradable on the
Registration Trigger Date (a “Shelf Request”),


 


the
Company and the Guarantor shall promptly deliver to the Holders and the Trustee
written notice thereof and shall use commercially reasonable efforts to cause
to be filed as soon as practicable after such determination, date or Shelf
Request, as the case may be, a Shelf Registration Statement providing for the
sale of all the Transfer Restricted Notes by the Holders thereof and to have
such Shelf Registration Statement become effective by the 90th day following such determination,
date or Shelf Request.


 


(b)           In
the event that the Company and the Guarantor are required to file a Shelf
Registration Statement pursuant to a Shelf Request, the Company and the
Guarantor shall use commercially reasonable efforts to file and have become
effective a Shelf Registration Statement with respect to offers and sales of
Transfer Restricted Notes after the completion of the Exchange Offer and an
Exchange Offer Registration Statement if otherwise required pursuant to this
Agreement. In the event that the Company and the Guarantor are required to file
a Shelf Registration Statement, the Company and the Guarantor agree to use
commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended (including through
post-effective amendments on Form S-3 if the Company is eligible to use
such Form) until the date that is one year from the date the Shelf Registration
Statement is declared effective or such shorter period ending when no Notes
covered by such Shelf Registration Statement constitute Transfer Restricted
Notes (the “Effectiveness Period”).


 


(c)           Notwithstanding
any other provisions hereof, the Company and the Guarantor shall use
commercially reasonable efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming a 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, in
light of the circumstances under which they were made, not misleading.


 


(d)           The
Company and the Guarantor shall not permit any securities other than Transfer
Restricted Notes to be included in the Shelf Registration Statement; provided, however,
that if the offer and sale of the Transfer Restricted Notes is registered
pursuant to an Automatic Shelf Registration Statement, the foregoing
prohibition shall apply only to the supplement or amendment


 


8

















 


covering
such registration. The Company and the Guarantor agree, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section 3(b) below.


 


(e)           If
the Company is obligated to file a Shelf Registration Statement pursuant to
this Section 2.2, and at the time such obligation arises, the
Company is a WKSI, then, in lieu of filing such Shelf Registration Statement,
the Company shall file an Automatic Shelf Registration Statement or supplement
or amend an existing Automatic Shelf Registration Statement, as appropriate, to
include the offer and sale of the Transfer Restricted Notes by the Holders from
time to time in accordance with the methods of distribution elected by the
Holders of a majority in aggregate principal amount of Transfer Restricted
Notes participating in such registration and set forth in such Automatic Shelf
Registration Statement (or supplement or amendment thereto), within the time
frame specified in this Section 2.2.


 


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


 


2.4           Effectiveness.


 


(a)           The
Company and the Guarantor will be deemed not to have used commercially
reasonable efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if either the Company or the Guarantor
voluntarily takes any action that would, or omits to take any action which
omission would, result in any such Registration Statement not being declared
effective, or in the Holders of Transfer Restricted Notes covered thereby not
being able to exchange or offer and sell such Transfer Restricted Notes during
that period as and to the extent contemplated hereby, unless such action is
required by applicable law, in each case other than under the circumstances
described in Sections 3(e)(iii), (iv), (v) or (vi) below.


 


(b) Neither an Exchange Offer Registration
Statement pursuant to Section 2.1 hereof nor a Shelf Registration
Statement pursuant to Section 2.2 hereof, if not otherwise
effective upon filing with the SEC as provided by Rule 462, will be deemed
to have become effective unless it has been declared effective by the SEC; provided, however,
that if, after it becomes effective, the offering of Transfer Restricted Notes
pursuant to an Exchange Offer Registration Statement or 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
Registration Statement will not be effective during the period of such
interference, until the offering of Transfer Restricted Notes pursuant to such
Registration Statement may legally resume.


 


2.5           Additional
Interest.


 


(a)           In
the event that (i) an Exchange Offer Registration Statement is required
pursuant to Section 2.1 and (x) such Exchange Offer
Registration Statement does not become effective on or prior to the two year
anniversary of the date hereof or (y) the Exchange Offer is not completed
within 45 days after the date on which the Exchange Offer Registration
Statement becomes effective, or (ii) a Shelf Registration Statement is
required in accordance with Section 2.2


 


9

















 


and
such Shelf Registration Statement (x) does not become effective on or
prior to the 90th day following (A) the date of such
determination, in the case of a Shelf Registration Statement required pursuant
to Section 2.2(a)(i), (B) such date, in the case of a Shelf
Registration Statement required pursuant to Section 2.2(a)(ii) (which
in no event shall be earlier than the date the Exchange Offer Registration
Statement is required to be declared effective pursuant to clause 2.5(a)(i)(x) above)
or (C) the date of such Shelf Request, in the case of a Shelf Registration
Statement required pursuant to Section 2.2(a)(iii), or (y) becomes
effective but ceases to be effective or the corresponding Prospectus ceases to
be usable at any time during the Effectiveness Period, and such failure to
remain effective or usable exists for more than 60 days (whether or not
consecutive) in any 12-month period (any event referred to in the foregoing clauses
(i) or (ii) a “Registration
Default”), then, in each case, the interest rate on the Transfer
Restricted Notes will be increased by (i) 0.25% per annum for the first
90-day period immediately following such Registration Default and (ii) an
additional 0.25% per annum with respect to each subsequent 90-day period, up to
a maximum of 1.00% per annum, in each case until the earlier of the date such
Registration Default is cured or the date on which no Notes constitute Transfer
Restricted Notes. Any amounts payable under this paragraph shall also be deemed
“Additional Interest” for purposes
of this Agreement.


 


(b)           The
Company shall notify the Trustee within three business days after each and
every date on which an event occurs in respect of which Additional Interest is
required to be paid (an “Event Date”).
Any Additional Interest due shall be payable on each interest payment date to
the Holder of Notes with respect to which Additional Interest is due and owing.
Each obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date.


 


3.             Registration
Procedures.


 


In connection with the obligations of the Company
and the Guarantor with respect to Registration Statements pursuant to Sections
2.1 and 2.2 hereof, the Company and the Guarantor shall:


 


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


 


(b)           prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such
Registration Statement effective for the applicable period; and cause each
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented


 


10

















 


to be filed pursuant to Rule 424 (or any
similar provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer); and keep
each Prospectus current during the period described in Section 4(3) of
and Rule 174 under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Transfer Restricted Notes or Exchange
Notes;


 


(c)           in
the case of a Shelf Registration, (i) notify each Holder of Transfer
Restricted Notes to be covered thereby, at least five business days prior to
filing, that a Shelf Registration Statement (except in the case of an Automatic
Shelf Registration Statement, in which case at least five business days prior
to the inclusion of information regarding selling security holders in the
Prospectus forming a part of such Automatic Shelf Registration Statement) with
respect to such Transfer Restricted Notes is being filed and advising such
Holders that the distribution of such Transfer Restricted Notes will be made in
accordance with the method selected by a majority in aggregate principal amount
of the Holders of Transfer Restricted Notes participating in the Shelf
Registration; (ii) furnish to each Holder of Transfer Restricted Notes to
be covered thereby and to each underwriter of an underwritten offering of
Transfer Restricted Notes, 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 public sale or
other disposition of the Transfer Restricted Notes; and (iii) do hereby
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Transfer Restricted Notes in connection with the
offering and sale of the Transfer Restricted Notes covered by the Prospectus or
any amendment or supplement thereto;


 


(d)           use
commercially reasonable efforts to register or qualify the Transfer Restricted
Notes under all applicable state securities or “blue sky” laws of such
jurisdictions as any Holder of Transfer Restricted Notes covered by a
Registration Statement and each underwriter of an underwritten offering of
Transfer Restricted Notes shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, cooperate with such
Holders in connection with any filings required to be made with FINRA, 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 Transfer Restricted Notes owned
by such Holder; provided, however, that the Company and the
Guarantor shall not be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where they would not otherwise be
required to qualify but for this Section 3(d), or (ii) take
any action which would subject them to general service of process or taxation
in any such jurisdiction where they are not then so subject;


 


11

















 


(e)           notify
promptly each Holder of Transfer Restricted Notes under a Shelf Registration or
any Participating Broker-Dealer who has notified the Company that it is
utilizing the Exchange Offer Registration Statement as provided in clause (f) below
and, if requested by such Holder or Participating Broker-Dealer, confirm such
advice in writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements to a
Registration Statement have become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the 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 Registration Statement or the initiation of
any proceedings for that purpose, including the receipt by the Company of any
notice of objection of the SEC to the use of a Shelf Registration Statement or
any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the 1933 Act, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale of
Transfer Restricted Notes covered thereby, the representations and warranties
of the Company and the Guarantor contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects, (v) 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
Registration Statement or the related Prospectus untrue in any material respect
or which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading, (vi) of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Transfer Restricted Notes or the Exchange Notes, as
the case may be, for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose and (vii) of any determination by the
Company that a post-effective amendment to such Registration Statement would be
appropriate;


 


(f)            in
the case of the Exchange Offer Registration Statement (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution”
which section shall be in customary form, and which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential “underwriter” status of any broker-dealer that holds
Transfer Restricted Notes acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 under the 1934 Act) of Exchange
Notes to be received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the SEC
or such positions or policies, represent the prevailing views of the staff of
the SEC, including a statement that any such broker dealer who receives
Exchange Notes for Transfer Restricted Notes pursuant to the Exchange Offer may
be deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Notes, (ii) furnish to each Participating Broker-Dealer who has delivered
to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, as such Participating


 


12

















 


Broker Dealer may reasonably request, (iii) do
hereby consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any Person
subject to the prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:


 


“If the exchange offeree is a broker-dealer holding
Transfer Restricted Notes acquired for its own account as a result of
market-making activities or other trading activities, it will deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of Exchange Notes received in respect of such Transfer Restricted Notes
pursuant to the Exchange Offer;” and


 


(y) a statement to the effect that by a
broker-dealer’s making the acknowledgment described in clause (x) and
by delivering a Prospectus in connection with the exchange of Transfer
Restricted Notes, the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the 1933 Act;


 


(g)           use
commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
practicable moment, and, in the case of a Shelf Registration, the resolution of
any objection of the SEC pursuant to Rule 401(g)(2), including by filing
an amendment to such Shelf Registration Statement on the proper form, at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order or such resolution;


 


(h)           in
the case of a Shelf Registration, if requested in writing, furnish to each
Holder of Transfer Restricted Notes, and each underwriter, if any, without
charge, at least one conformed copy of each 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)            in
the case of a Shelf Registration, cooperate with the selling Holders of
Transfer Restricted Notes to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Notes to be sold and not bearing
any restrictive legends; and enable such Transfer Restricted Notes 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 Transfer Restricted Notes;


 


(j)            in
the case of a Shelf Registration, upon the occurrence of any event or the
discovery of any facts, each as contemplated by Sections 3(e)(v) and
3(e)(vi) hereof, as promptly as practicable after the occurrence of
such an event, use commercially reasonable efforts to prepare and file with the
SEC a supplement or post-effective amendment to the Registration Statement or
the related Prospectus or any document incorporated


 


13

















 


therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Transfer
Restricted Notes or Participating Broker-Dealers, 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;


 


(k)           in
the case of a Shelf Registration Statement, a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or of any
document that is to be incorporated by reference into a Registration Statement
or a Prospectus after the initial filing of a Registration Statement, provide a
copy of any such document to each of the Initial Purchasers on behalf of such
Holders; and make representatives of the Company and the Guarantor as shall be
reasonably requested by the Holders of Transfer Restricted Notes, or the
Initial Purchasers on behalf of such Holders, available for discussion of such
document; and the Company and the Guarantor shall not, at any time after
initial filing of a Registration Statement, use or file any Prospectus, any
amendment of or supplement to a Registration Statement, or any document that is
to be incorporated by reference into a Registration Statement or a Prospectus,
of which the Initial Purchasers shall not have previously been advised and
furnished a copy or to which the Initial Purchasers shall object;


 


(l)            obtain
a CUSIP number for all Exchange Notes or Transfer Restricted Notes, as the case
may be, not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the Exchange Notes or the Transfer
Restricted Notes, as the case may be, in a form eligible for deposit with the
Depositary;


 


(m)          (i) in
the case of a Shelf Registration, cause the indenture to be qualified under the
TIA in connection with the registration of the Transfer Restricted Notes, and,
in the case of an Exchange Offer Registration, cause or maintain, as the case
may be, the Indenture to be qualified under the TIA in connection with the
registration of the Exchange Notes, (ii) cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for the
Indenture to be, or continue to be, so qualified in accordance with the terms
of the TIA and (iii) execute, and use commercially reasonable efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;


 


(n)           in
the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Transfer Restricted Notes and if
so requested by the holders of such Transfer Restricted Notes and in such connection
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration:


 


(i)            make
such representations and warranties to the Holders of such Transfer Restricted
Notes and the underwriters, if any, as the Company and the


 


14

















 


Guarantor are able to make, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;


 


(ii)           in
connection with an underwritten registration, obtain opinions of counsel to the
Company and the Guarantor and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in principal amount of the
Transfer Restricted Notes being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders and underwriters;


 


(iii)          in
connection with an underwritten registration, obtain “cold comfort” letters and
updates thereof from the Company’s and the Guarantor’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 Registration Statement) addressed to the underwriters, if any, and use
commercially reasonable efforts to have such letter addressed to the selling
Holders of Transfer Restricted Notes (to the extent consistent with Statement
on Auditing Standards No. 72 of the American Institute of Certified Public
Accountants), such letters to be in customary form and covering matters of the
type customarily covered in “cold comfort” letters to underwriters in
connection with similar underwritten offerings;


 


(iv)          enter
into a securities sales agreement with the Holders and an agent of the Holders
providing for, among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of Transfer Restricted
Notes, which agreement shall be in form, substance and scope customary for
similar offerings;


 


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


 


(vi)          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 Transfer Restricted Notes being sold and the managing
underwriters, if any.


 


The above shall be done at (i) the
effectiveness of such Shelf Registration Statement (and each post-effective
amendment thereto) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;


 


15














 


(o)           in
the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make
available for inspection by representatives of the Holders of the Transfer
Restricted Notes, any underwriters participating in any disposition pursuant to
a Shelf Registration Statement, any Participating Broker-Dealer and any counsel
or accountant retained by any of the foregoing, all non-confidential financial
and other records, pertinent corporate documents and properties of the Company
or the Guarantor reasonably requested by any such persons, and cause the
respective officers, directors, employees, and any other agents of the Company
and the Guarantor to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Company and the
Guarantor available for discussion of such documents as shall be reasonably
requested by such persons;


 


(p)           if
so requested by the Initial Purchasers, in the case of an Exchange Offer
Registration Statement, a reasonable time prior to filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide a copy of any such document to each of the Initial
Purchasers and to counsel to the Holders of Transfer Restricted Notes; and


 


(q)           in
the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment to
such Shelf Registration Statement or amendment or supplement to such
Prospectus, provide a copy of any such document to each of the Initial
Purchasers, if so requested,
to the Holders of Transfer Restricted Notes to be covered thereby, to counsel
for such Holders designated by them and to the underwriter or underwriters of
an underwritten offering of such Transfer Restricted Notes, if any, make such
changes in any such document prior to the filing thereof relating to such
Holders or such Transfer Restricted Notes as the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such document
in a form to which the holders of a majority in aggregate principal amount of
Transfer Restricted Notes covered by such Shelf Registration Statement, counsel
for such Holders of the Transfer Restricted Notes covered by such Shelf
Registration Statement, or any underwriter shall not have previously been
advised and furnished a copy of or to which the Majority Holders of Transfer
Restricted Notes covered by such Shelf Registration Statement, counsel to such
Holders of Transfer Restricted Notes or any underwriter shall reasonably
object, and make the representatives of the Company and the Guarantor available
for discussion of such document as shall be reasonably requested by such
Holders of Transfer Restricted Notes, the counsel for such Holders of Transfer Restricted
Notes or any underwriter;


 


(r)            in
the case of a Shelf Registration, use commercially reasonable efforts to cause
all Transfer Restricted Notes to be listed on any securities exchange on which
similar debt securities issued by the Company and the Guarantor are then listed
if requested by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Notes covered by such Shelf Registration Statement, or if
requested by the underwriter or underwriters of an underwritten offering of
Transfer Restricted Notes, if any;


 


16

















 


(s)           in
the case of a Shelf Registration, use commercially reasonable efforts to cause
the Transfer Restricted Notes to be rated by the appropriate rating agencies,
if so requested by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Notes covered by such Shelf Registration Statement, or
if requested by the underwriter or underwriters of an underwritten offering of
Transfer Restricted Notes, if any;


 


(t)            otherwise
comply with all applicable rules and regulations of the SEC and make
available to their security holders, as soon as reasonably practicable after
the effective date of the applicable Registration Statement, 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;


 


(u)           cooperate
and assist in any filings required to be made with FINRA and, in the case of a
Shelf Registration, in the performance of any due diligence investigation by
any underwriter and its counsel (including any “qualified independent
underwriter” that is required to be retained in accordance with the rules and
regulations of FINRA);


 


(v)           if
reasonably requested by any Holder of Transfer Restricted Notes covered by a
Shelf Registration Statement, promptly include in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and make all required filings
of such Prospectus supplement or such post-effective amendment as soon as the
Company has received notification of the matters to be so included in such
filing; and


 


(w)          amend
or supplement the Prospectus contained in the Exchange Offer Registration
Statement for a period of up to 90 days after the last Exchange Date (as such
period may be extended pursuant to this Agreement), in order to expedite or
facilitate the disposition of any Exchange Notes by Participating Broker-Dealers consistent with the
positions of the staff of the SEC. The Company and the Guarantor agree that
Participating Broker-Dealers shall be authorized to deliver such Prospectus
(or, to the extent permitted by law, make available) during such period in
connection with the resales contemplated by this clause (w).


 


In the case of a Shelf Registration Statement, the
Company and the Guarantor may (as a condition to such Holder’s participation in
the Shelf Registration) require each Holder of Transfer Restricted Notes to furnish
to the Company and the Guarantor such information regarding the Holder and the
proposed distribution by such Holder of such Transfer Restricted Notes as the
Company and the Guarantor may from time to time reasonably request in writing.


 


In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company or the
Guarantor of the happening of any event or the discovery of any facts, each of
the kind described in Section 3(e)(iii) or (vi) hereof,
such Holder will forthwith discontinue disposition of Transfer Restricted Notes
pursuant to a Registration Statement until such Holder’s receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(k) hereof,
and, if so directed by the Company and the Guarantor, such Holder will deliver
to the Company and the Guarantor (at its expense) all copies in such Holder’s
possession,


 


17

















 


other
than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Transfer Restricted Notes current at the time of receipt of such
notice.


 


If any of the Transfer Restricted Notes 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 Transfer Restricted
Notes to be included in such offering and shall be acceptable to the Company
and the Guarantor. No Holder of Transfer Restricted Notes may participate in
any underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder’s Transfer Restricted Notes 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.


 


If the Company and the Guarantor shall give any
notice to suspend the disposition of Transfer Restricted Notes pursuant to a
Registration Statement, the Company and the Guarantor shall extend the period
during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including
the date of the giving of such notice to and including the date when the
Holders of such Transfer Restricted Notes shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The
Company and the Guarantor may suspend the disposition of Transfers Restricted
Notes no more than an aggregate of 90 days in any 365-day period.


 


4.             Indemnification;
Contribution.


 


(a)           The
Company and the Guarantor agree to indemnify, jointly and severally, and hold
harmless the Initial Purchasers and each of their affiliates and any other
Person under common control with the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter
(any such Person being an “Underwriter”)
and each Person, if any, who controls any Holder or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
(collectively the “Company Indemnitees”)
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 Registration Statement (or any amendment or supplement
thereto) pursuant to which Exchange Notes or Transfer Restricted Notes were
registered under the 1933 Act, including all documents incorporated therein by
reference, any Free Writing Prospectus used in violation of this Agreement or
any “issuer information” (“Issuer Information”)
filed or required to be filed pursuant to Rule 433(d) under the 1933
Act, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;


 


18

















 


(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 the Guarantor; and


 


(iii)          against
any and all expense whatsoever, as incurred (including the 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 for (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 concerning any Company
Indemnitee furnished to the Company by any Company Indemnitee expressly for use
in a Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto); and provided, further,
that the indemnity agreement contained in this subsection shall not inure to
the benefit of any Company Indemnitee from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned, to the
extent that a prospectus relating to such Notes was required to be delivered by
such Company Indemnitee in connection with such purchase and any such loss,
claim, damage or liability of such Company Indemnitee results from the fact
that there was not sent or given to such person, at or prior to the sale of
such Notes to such person, a copy of such prospectus if the Company had
previously furnished copies thereof to such Company Indemnitee.


 


(b)           Each
Company Indemnitee, severally, but not jointly, agrees to indemnify and hold
harmless the Company, the Guarantor, each Underwriter and the other selling Holders,
and each of their respective directors and officers, and each Person, if any,
who controls the Company, the Guarantor, 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 Company Indemnitee furnished to the
Company and the Guarantor by such Company Indemnitee 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 Company Indemnitee shall be liable for any claims hereunder in
excess of the amount of net proceeds received by such Company Indemnitee from
the sale of Transfer Restricted Notes pursuant to such Shelf Registration
Statement.


 


19

















 


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


 


(d)           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 and the Guarantor, on the one hand, and the
Company Indemnitees, 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 and the Guarantor,
on the one hand, and the Company Indemnitees, 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, the
Guarantor or the Company Indemnitees and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.


 


The Company, the Guarantor and the Company
Indemnitees agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation
(even if the Initial Purchasers were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 4. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 4 shall be
deemed to include any 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


 


20

















 


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.


 


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


 


For purposes of this Section 4, each
Person, if any, who controls an Initial Purchaser or Holder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as such Initial Purchaser or Holder, and
each director of the Company or the Guarantor, and each Person, if any, who
controls the Company or the Guarantor 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 and the Guarantor. The Initial Purchasers’
respective obligations to contribute pursuant to this Section 4 are
several in proportion to the principal amount of Notes set forth opposite their
respective names in Schedule A
to the Purchase Agreement and not joint. Notwithstanding the provisions of this
Section 4, in no event shall a Holder be required to contribute any
amount in excess of the amount by which the total price at which all of the
Notes sold by such Holder exceeds the amount of any damages that such Holder
has otherwise been required to pay under Section 4(b) hereof.


 


The remedies provided for in this Section 4
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any indemnified party at law or in equity.


 


The indemnity and contribution provisions contained
in this Section 4 shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Company Indemnitees or any Person
controlling any Company Indemnitee, or by or on behalf of the Company or the
Guarantor or the officers or directors of or any Person controlling the Company
or the Guarantor, (iii) acceptance of any of the Exchange Notes and (iv) any
sale of Transfer Restricted Notes pursuant to a Shelf Registration Statement; provided, however,
that the indemnity and contribution rights provided for, in this Section 4
shall not extend to any losses, liabilities or other damages arising out of
actions occurring after the termination of this Agreement.


 


5.             Miscellaneous.


 


5.1           Rule 144
and Rule 144A. For so long as the Company and the Guarantor are subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
and the Guarantor covenant that they will file and furnish the reports required
to be filed by them under the 1933 Act and Section 13(a) or 15(d) of
the 1934 Act and the rules and regulations adopted by the SEC thereunder.
If the Company and the Guarantor cease to be so required to file and furnish
such reports, the Company and the Guarantor covenant that they will upon the
request of any Holder of Transfer Restricted Notes (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 take such further action as any Holder of Transfer Restricted
Notes may reasonably request, 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 Transfer Restricted Notes without


 


21

















 


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 Transfer Restricted Notes, the Company and the
Guarantor will deliver to such Holder a written statement as to whether they
have complied with such requirements.


 


5.2           No
Inconsistent Agreements. The Company and the Guarantor have not entered into, and the Company and
the Guarantor will not after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Transfer Restricted Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will
not for the term of this Agreement in any way conflict with the rights granted
to the holders of the Company’s or the Guarantor’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 and
the Guarantor have obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Transfer Restricted
Notes affected by such amendment, modification, supplement, waiver or
departure.


 


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, telex, telecopier, or any courier guaranteeing
overnight delivery (a) if to a Holder, at the most current address given
by such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially, and until
so changed, is the address set forth in the Purchase Agreement with respect to
the Initial Purchasers; and (b) if to the Company and the Guarantor,
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; three business days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.


 


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 therein.


 


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 Transfer Restricted Notes in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Notes, in any manner, whether by operation


 


22

















 


of
law or otherwise, such Transfer Restricted Notes shall be held subject to all
of the terms of this Agreement, and by taking and holding such Transfer
Restricted Notes 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. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantor with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this Agreement


 


5.6           Third Party
Beneficiaries.
The Initial Purchasers (even if the Initial Purchasers are not Holders of
Transfer Restricted Notes) shall be third party beneficiaries to the agreements
made hereunder between the Company and the Guarantor, on the one hand, and the
Holders, on the other hand, and shall have the right to enforce such agreements
directly to the extent they deem such enforcement necessary or advisable to
protect their rights or the rights of Holders hereunder. Each Holder of
Transfer Restricted Notes shall be a third party beneficiary to the agreements
made hereunder between the Company and the Guarantor, on the one hand, and the
Initial Purchasers, 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           Remedies. Each of the Company and the Guarantor hereby
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that
a remedy at law would be adequate.


 


5.8           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. This Agreement may be executed by facsimile
signature.


 


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


 


5.10         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.


 


5.11         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.


 


[signature page follows]


 


23

















 


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


 


	
   

  	
  FGI HOLDING COMPANY, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Fredric E. Roth, Jr.

  
	
   

  	
   

  	
  Name: Fredric E. Roth, Jr.

  
	
   

  	
   

  	
  Title: Senior Vice President, General Counsel and
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FREEDOM GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ted Torbeck

  
	
   

  	
   

  	
  Name: Ted Torbeck

  
	
   

  	
   

  	
  Title: CEO

  



 


Registration
Rights Agreement Signature Page


 

















 


	
  CONFIRMED AND ACCEPTED,

  
	
  as of the date first above written:

  
	
   

  
	
  BANC OF AMERICA SECURITIES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ M.W. Kennelley

  	
   

  
	
   

  	
  Name:

  	
  M.W. Kennelley

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  



 


[Registration
Rights Agreement]


 

















 


	
  DEUTSCHE BANK SECURITIES INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Chris Blum 

  	
   

  
	
   

  	
  Name:

  	
  Chris Blum 

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ deutsche bank securities
  inc.

  	
   

  
	
   

  	
  Name:

  	
  deutsche bank securities inc.

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  



 


[Registration
Rights Agreement]