Exhibit 10.1


 


Registration Rights
Agreement


 


between


 


Fleetwood
Enterprises, Inc.


 


and


 


Lehman Brothers Inc.


 


 


 


 


Dated as of December
22, 2003


 

















 


TABLE OF CONTENTS


 


 


	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions.

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Shelf Registration.

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Additional Amounts.

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Registration Procedures.

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Registration Expenses.

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Indemnification and
  Contribution.

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Underwritten Offerings

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Miscellaneous.

  	
   

  



 

















 


Registration Rights Agreement, dated as of December 22, 2003, between
Fleetwood Enterprises, Inc., a Delaware corporation (together with any
successor entity, herein referred to as the “Company”),
and Lehman Brothers Inc. (the “Initial
Purchaser”).


 


Pursuant to the Purchase Agreement, dated December 16, 2003, between the
Company and the Initial Purchaser (the “Purchase
Agreement”), the Initial Purchaser has agreed to purchase from the
Company $100,000,000 aggregate principal amount of 5.00% Convertible Senior
Subordinated Debentures due December 15, 2023 (the “Debentures”).  Until
Stockholder Approval (as defined herein) has been obtained, other than upon
satisfaction of the Debenture Price Conditions (as such conditions are
described in the Offering Memorandum), each Debenture will be convertible into
(A) an amount of cash equal to the lesser of (1) the principal amount of such
Debenture or (2) the Conversion Value (as defined in the Indenture) of such
Debentures, plus (B) a number of shares common stock of the Company, par value
$1 per share (the “Common Stock”)
equal in value to the excess (if any) of the Conversion Value of such Debenture
over its principal amount, but not more than 59.95885 shares per $1,000
principal amount of Debentures, and convertible, upon satisfaction of the
Debenture Price Conditions, into an amount of cash equal to the lesser of (A)
the Conversion Value (as defined in the Indenture) or such Debenture or (B) the
principal amount of such Debentures. 
Following Stockholder Approval, the Debentures will be convertible, at
the Company’s option, into Common Stock, cash or a combination of cash and
Common Stock, on the terms, and subject to the conditions, set forth in the
Indenture (as defined herein).  To
induce the Initial Purchaser to purchase the Debentures, the Company has agreed
to provide the registration rights set forth in this Agreement pursuant to the
Purchase Agreement.


 


The parties hereby agree as follows:


 


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


 


Additional
Amounts:  As defined in Section 3(a) hereto.


 


Additional
Amounts Payment Date:  Each December 15 and June 15, commencing
June 15, 2004.


 


Additional
Effectiveness Target Date: As defined in Section 2(a)(ii)(B) hereto.


 


Additional
Shelf Filing Deadline: As defined in Section 2(a)(ii)(A) hereto.


 


Additional
Shelf Registration Statement: As defined in Section 2(a)(ii)(A) hereto.


 


Affiliate:  As such term
is defined in Rule 405 under the Securities Act.


 


Agreement: 
This Registration Rights Agreement, as amended, modified or otherwise
supplemented from time to time in accordance with the terms hereof.


 


Applicable
Amount:  In respect of shares of Common Stock issued
upon conversion of Debentures, an amount equal to (x) the number of such shares
multiplied by (y)


 


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the prevailing Conversion Price (as defined
in the Indenture), such prevailing Conversion Price as determined in accordance
with the Indenture.


 


Blue
Sky Application:  As defined in Section 6(a)(i) hereto.


 


Business
Day:  A day other than a Saturday or Sunday or any
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.


 


Closing
Date:  The date of this Agreement.


 


Commission: 
Securities and Exchange Commission.


 


Common
Stock:  As defined in the preamble hereto.


 


Company: 
As defined in the preamble hereto.


 


Debentures: 
As defined in the preamble hereto.


 


Effectiveness
Period:  As defined in Section 2(a)(iii) hereto.


 


Effectiveness
Target Date:  As defined in Section 2(a)(ii) hereto.


 


Exchange
Act:  Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.


 


Holder: 
Any Person (including the Initial Purchaser) who owns from time to time,
beneficially or otherwise, Transfer Restricted Securities.


 


Included
Stock:  As defined in Section 9(c) hereto.


 


Indemnified
Holder:  As defined in Section 6(a) hereto.


 


Indenture: 
The Indenture, dated as of December 16, 2003, between the Company and
The Bank of New York, as trustee (the “Trustee”),
pursuant to which the Debentures are to be issued, as such Indenture is
amended, modified or supplemented from time to time in accordance with the
terms thereof.


 


Initial
Purchaser:  As defined in the preamble hereto.


 


Interest
Payment Date:  Each December 15 and June 15 of each year,
commencing June 15, 2004.


 


Majority
of Holders:  Holders holding more than 50% of the
aggregate principal amount at maturity of Debentures outstanding; provided, that for purpose of this
definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities when issued upon conversion


 


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of the Debentures shall be deemed to hold an
aggregate principal amount at maturity of Debentures (in addition to the
principal amount at maturity of Debentures held by such holder) equal to (x)
the number of such shares of Common Stock received upon conversion of the
Debentures and then held by such holder multiplied by (y) the prevailing Conversion
Price, such prevailing Conversion Price as defined in and determined in
accordance with the Indenture.


 


NASD: 
National Association of Securities Dealers, Inc.


 


Notice
Holder:  As defined in Section 2(a)(i) hereto.


 


NYSE: 
New York Stock Exchange.


 


Person: 
An individual, partnership, corporation, unincorporated organization,
limited liability company, trust, joint venture or a government or agency or
political subdivision thereof.


 


Prospectus: 
The prospectus included in a Shelf Registration Statement or Additional
Shelf Registration Statement as applicable (including any prospectus pursuant
to Rule 429 under the Securities Act), as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.


 


Purchase
Agreement:  As defined in the preamble hereto.


 


Questionnaire: 
As defined in Section 2(b) hereof.


 


Record
Holder:  With respect to any Additional Amounts
Payment Date, each Person who is a Holder on the record date with respect to
the Interest Payment Date on which such Additional Amounts Payment Date shall
occur.  In the case of a Holder of
shares of Common Stock issued upon conversion of the Debentures, “Record
Holder” shall mean each Person who is a Holder of shares of Common Stock that
constitute Transfer Restricted Securities on the 15th day preceding
the relevant Additional Amounts Payment Date.


 


Registration
Default:  As defined in Section 3(a) hereof.


 


Securities
Act:  Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.


 


Shelf
Filing Deadline:  As defined in Section 2(a)(i) hereof.


 


Shelf
Registration Statement:  As defined in Section 2(a)(i)
hereof.


 


Stockholder
Approval:  With respect to the Common Stock, (i) the
authorization and approval by the Company’s stockholders, in accordance with
the Company’s bylaws and applicable law, of an amendment to the Company’s
Restated Certificate of Incorporation to increase the authorized number of
shares to at least 77,507,515 shares and (ii) the authorization and reservation
of an additional 2,507,515 shares by the Board of Directors of the Company free
from any preemptive rights to be made available for issuance by the Company
upon conversion of the Debentures.


 


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Suspension
Period.  As defined in Section 4(b)(i) hereof.


 


TIA: 
Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder, in each case, as in effect on the date the
Indenture is qualified under the TIA.


 


Transfer
Restricted Securities:  Each Debenture and each share
of Common Stock issued upon conversion of Debentures until the earliest of:


 


(i)                    the date on which such
Debenture or such share of Common Stock issued upon conversion thereof has been
effectively registered under the Securities Act and sold or otherwise
transferred in accordance with the Shelf Registration Statement;


 


(ii)                   the date on which such
Debenture or such share of Common Stock issued upon conversion thereof (A) is
transferred in compliance with Rule 144 under the Securities Act or (B) may be
sold or transferred by a person who is not an Affiliate of the Company pursuant
to Rule 144 under the Securities Act (or any other similar provision then in
force) without any volume or manner of sale restrictions thereunder; or


 


(iii)                  the date on which such
Debenture or such share of Common Stock issued upon conversion ceases to be
outstanding (whether as a result of redemption, repurchase and cancellation,
conversion or otherwise); provided, that any Debenture and any
Common Stock issued upon conversion of such Debenture that is redeemed or
repurchased by the Company shall not be deemed Transfer Restricted Securities
for purposes of this Agreement upon resale by the Company.


 


Underwriter: 
The managing underwriter in an Underwritten Registration or Underwritten
Offering.


 


Underwritten
Registration or Underwritten Offering:  A
registration in which Debentures or shares of our Common Stock issued upon
conversion of Debentures are sold by a Majority of Holders to an Underwriter
for reoffering to the public.


 


2.     Shelf
Registration.


 


(a)   The Company shall:


 


(i)                    Do the following with
respect to all Transfer Restricted Securities that are duly authorized at the
Shelf Filing Deadline:


 


(A)  not later than 90 days after
the date hereof (the “Shelf Filing Deadline”), use its reasonable
best efforts to cause to be filed a registration statement pursuant to Rule 415
under the Securities Act (together with any amendments thereto, and including
any documents incorporated by reference therein, the “Shelf Registration Statement”),
which Shelf Registration Statement shall provide for resales from time to 


 


4

















 


time
of all Transfer Restricted Securities held by Holders that have provided the
information required pursuant to the terms of Section 2(b) hereof (each such
holder a “Notice
Holder”);


 


(B)   use its reasonable best
efforts to cause the Shelf Registration Statement to be declared effective by
the Commission as promptly as practicable, but not later than 180 days after
the date hereof (the “Effectiveness Target
Date”); and


 


(ii)                   Do the following with respect
to any Transfer Restricted Securities that are not duly authorized at the Shelf
Filing Deadline and subsequently are duly authorized by the Stockholder
Approval:


 


(A)  not later than 90 days after
the Stockholder Approval (the “Additional
Shelf Filing Deadline”), if any Debentures are Transfer Restricted
Securities at the time of the Stockholder Approval and if any Common Stock
issuable upon conversion of such Debentures would be Transfer Restricted
Securities, use its reasonable best efforts to cause to be filed a registration
statement pursuant to Rule 415 under the Securities Act (together with any
amendments thereto, and including the documents incorporated by reference
therein, the “Additional Shelf
Registration Statement”), which Additional Shelf Registration
Statement shall provide for resales from time to time of all Transfer
Restricted Securities held by Notice Holders;


 


(B)   use its reasonable best
efforts to cause the Additional Shelf Registration Statement to be declared
effective by the Commission as promptly as practicable, but not later than 180
days after the Stockholder Approval (the “Additional
Effectiveness Target Date”); and


 


(iii)                  use its reasonable best
efforts to keep the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the extent
necessary to ensure that (A) it is available for resales by the Notice Holders
of Transfer Restricted Securities entitled to the benefit of this Agreement and
(B) it conforms with the requirements of this Agreement and the Securities Act
for a period (the “Effectiveness Period”) ending on
the earliest of:


 


(1)           two years following
the last date of original issuance of Debentures;


 


(2)           the date when all of
the Holders of Transfer Restricted Securities are able to sell all Transfer
Restricted Securities immediately without restriction pursuant to Rule 144(k)
under the Securities Act or any successor rule thereto;


 


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(3)           the date when all
Transfer Restricted Securities have ceased to be outstanding (whether as a
result of redemption, repurchase and cancellation, conversion or otherwise);
and


 


(4)           the date when all
Transfer Restricted Securities registered under the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable, have
been transferred pursuant to such Shelf Registration Statement or Additional
Shelf Registration Statement, as applicable.


 


(b)   To
have its Transfer Restricted Securities included in the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable,
pursuant to this Agreement, each Holder shall complete the Selling
Securityholder Notice and Questionnaire, the form of which is contained in Annex
A to the Offering Memorandum relating to the Debentures (the “Questionnaire”).  The Company shall mail the Questionnaire to
all Holders of Transfer Restricted Securities at least 20 Business Days (but
not more than 40 Business Days) prior to the time the Company intends in good
faith to have the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, declared effective by the
Commission.  Upon receipt of a written
request for additional information from the Company, each Holder who intends to
be named as a selling Holder in the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, shall furnish to the
Company in writing, within 20 Business Days after the date of the Questionnaire,
such additional information regarding such Holder and the proposed distribution
by such Holder of its Transfer Restricted Securities, in connection with the
Shelf Registration Statement or the Additional Shelf Registration Statement, as
applicable, or Prospectus or Preliminary Prospectus included therein and in any
application to be filed with or under state securities law, as the Company may
reasonably request.  In connection with
all such requests for information from Holders of Transfer Restricted Securities,
the Company shall notify such Holders of the requirements set forth in this
paragraph regarding their obligation to provide the information requested
pursuant to this Section.  Holders who
have not delivered a Questionnaire at least one Business Day prior to the
effectiveness of the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, will not be named as selling Holders in
the related Prospectus.  Thereafter,
such Holders may receive a Questionnaire from the Company upon request.  Upon receipt of such a completed
Questionnaire from a Holder following the effectiveness of the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, the Company shall, as promptly as reasonably practicable, and in
any event within 20 Business Days after such date, file with the Commission
such amendments to the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, or supplements to a related Prospectus
as are necessary to permit such Holder to transfer its Transfer Restricted
Securities pursuant to the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable. 
Each Holder as to which the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make information previously furnished to the Company by such Holder
not materially misleading.


 


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3.     Additional
Amounts.


 


(a)   If:


 


(i)                    the Shelf Registration
Statement is not filed with the Commission prior to or on the Shelf Filing
Deadline;


 


(ii)                   the Shelf Registration
Statement has not been declared effective by the Commission prior to or on the
Effectiveness Target Date;


 


(iii)                  except as provided in Section
4(b)(i) hereof, the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within five Business Days by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act that cures such failure and, in the case of a post-effective amendment, is
itself immediately declared effective;


 


(iv)                  the Additional Shelf
Registration Statement is not filed with the Commission prior to or on the
Additional Shelf Filing Deadline;


 


(v)                   the Additional Shelf
Registration Statement has not been declared effective by the Commission prior
to or on the Additional Effectiveness Target Date;


 


(vi)                  except as provided in Section
4(b)(i) hereof, the Additional Shelf Registration Statement is filed and
declared effective but, during the Effectiveness Period, shall thereafter cease
to be effective or fail to be usable for its intended purpose without being
succeeded within five Business Days by a post-effective amendment to the
Additional Shelf Registration Statement, a supplement to the Prospectus or a
report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared effective; or


 


(vii)                 (A)  prior to or on the 60th or 90th day, as the
case may be, of any Suspension Period, such suspension has not been terminated
or (B) Suspension Periods exceed 60 days in any 90-day period or an aggregate
of 90 days in any 360-day period,


 


(each such event
referred to in foregoing clauses (i) through (vii), a “Registration Default”), the Company hereby
agrees to pay additional amounts (“Additional
Amounts”) with respect to the Transfer Restricted Securities from
and including the day following the Registration Default to, but excluding, the
day on which the Registration Default has been cured, accruing at a rate:


 


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(A)          in
respect of the Debentures, to each holder of Debentures, (x) with respect to
the first 90-day period during which a Registration Default shall have occurred
and be continuing, equal to 0.25% per annum of the principal amount of the Debentures, and (y)
with respect to the period commencing on the 91st day following the
day the Registration Default shall have occurred and be continuing, equal to 0.50% per
annum of the principal amount of the Debentures; provided, that in no
event shall Additional Amounts accrue at a rate per year exceeding 0.50% of the
principal amount of the Debentures; and


 


(B)           in respect of any
shares of Common Stock, to each Holder of shares of Common Stock issued upon
conversion of Debentures, (x) with respect to the first 90-day period in which
a Registration Default shall have occurred and be continuing, equal to 0.25% per
annum of the Applicable Amount of the converted Debentures, and (y) with
respect to the period commencing the 91st day following the day the
Registration Default shall have occurred and be continuing, equal to 0.50% per
annum of the Applicable Amount of the converted Debentures; provided, that in no
event shall Additional Amounts accrue at a rate per year exceeding 0.50% of the
Applicable Amount of the converted Debentures; provided,  further, that (i) a
Holder who has converted some or all of its Debentures into Common Stock shall
not be entitled to Additional Amounts unless such Holder continues to hold such
Common Stock; (ii) a Holder who has converted some or all of its Debentures and
received cash in lieu of Common Stock shall not be entitled to Additional
Amounts on the cash paid to such Holder; and (iii) a Holder shall not be
entitled to Additional Amounts unless such Holder has timely provided all the
information require by Section 2(b).


 


(b)   All
accrued Additional Amounts shall be paid in arrears to such Holders as required
by, and in the manner described in, the Indenture.  Following the cure of all Registration Defaults relating to any
particular Debenture or share of Common Stock, the accrual of Additional
Amounts with respect to such Debenture or share of Common Stock will
cease.  The Company agrees to deliver
all notices, certificates and other documents contemplated by the Indenture in
connection with the payment of Additional Amounts.


 


All obligations of
the Company set forth in this Section 3 that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.


 


The Additional
Amounts set forth above shall be the exclusive monetary remedy available to the
Holders of Transfer Restricted Securities for such Registration Default.


 


4.     Registration Procedures.


 


(a)   In
connection with the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, the Company shall comply with all the
provisions of Section 4(b) hereof and shall use its reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method 


 


8

















 


or methods of distribution thereof, and pursuant
thereto, shall prepare and file with the Commission such Shelf Registration
Statement or Additional Shelf Registration Statement, as applicable, relating
to the registration on any appropriate form under the Securities Act; provided, however,
that no Holder shall be entitled to be named in the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable, as of
the date it is declared effective, or to the Prospectus forming part thereof,
for offers and sales of the Transfer Restricted Securities unless such Holder
is a Notice Holder.


 


(b)   In
connection with the Shelf Registration Statement, the Additional Shelf
Registration Statement and any Prospectus required by this Agreement to permit
the sale or resale of Transfer Restricted Securities, the Company shall:


 


(i)                    Use its reasonable best
efforts to keep the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, continuously effective during the
Effectiveness Period; upon the occurrence of any event or the existence of any
fact that would cause the Shelf Registration Statement, the Additional Shelf
Registration Statement, or the Prospectus contained therein, in either case
including any document incorporated by reference therein, (A) to contain a
material misstatement or omission or (B) not be effective and usable for resale
of Transfer Restricted Securities during the Effectiveness Period, the Company
shall file promptly an appropriate amendment to the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable, a
supplement to the Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause
(A), correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), use its reasonable best efforts to cause such amendment to
be declared effective and the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, and the related Prospectus to
become usable for their intended purposes as soon as practicable
thereafter.  Notwithstanding the
foregoing, the Company may suspend the Holders’ use of the Prospectus by
written notice to the Holders for a period not to exceed an aggregate of 60
days in any 90-day period (each such period, a “Suspension
Period”) if:


 


(x)   in the reasonable judgment of the Company,
the Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable, contains a material misstatement or omission as a
result of an event that has occurred and is continuing; and


 


(y)   the Company’s board of directors determines
in good faith that because of valid business reasons it is in the Company’s
best interest to suspend the use of the Shelf Registration Statement or
Additional Shelf Registration Statement, as applicable;


 


provided, that in the event the
disclosure relates to a previously undisclosed proposed or pending material
business transaction, the disclosure of which would impede the Company’s ability
to consummate such transaction, the Company may 


 


9

















 


extend a Suspension Period from 60 days to 90 days; provided, however, that Suspension Periods
shall not in any event exceed an aggregate of 90 days in any 360-day period.


 


(ii)                   Prepare and file with the
Commission such amendments and post-effective amendments to the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, as may be necessary to keep the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, during the applicable period in
accordance with the intended method or methods of distribution by the sellers
thereof set forth in the Shelf Registration Statement, the Additional Shelf
Registration Statement, as applicable, or supplement to the Prospectus.


 


(iii)                  Advise the Underwriter(s), if
any, and selling Holders promptly (but in any event within two Business Days)
and, if requested by such Persons, to confirm such advice in writing:


 


(A)  when the Shelf Registration
Statement, the Additional Shelf Registration Statement, Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Shelf Registration Statement, the Additional Shelf Registration
Statement or any post-effective amendment thereto, when the same has become
effective;


 


(B)   of any request by the
Commission for amendments to the Shelf Registration Statement, the Additional
Shelf Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, as applicable;


 


(C)   of the issuance by the
Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, under the Securities 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, during the Effectiveness Period, that makes any
statement of a material fact made in the Shelf Registration Statement, the
Additional Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, as applicable, or any document incorporated by reference
therein 


 


10

















 


untrue,
or that requires the making of any additions to or changes in the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, 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 in the Prospectus in the light of the circumstances
under which they were made not misleading (including, in any such case, as a
result of the non-availability of financial statements).


 


If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, 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 Company shall use its reasonable best efforts
to obtain the withdrawal or lifting of such order at the earliest possible time
and will provide to the Initial Purchaser and each Holder who is named in the
Shelf Registration Statement or the Additional Shelf Registration Statement, as
applicable, prompt notice of the withdrawal of any such order.


 


(iv)                  Furnish to the Initial
Purchaser and counsel for the Initial Purchaser, one counsel for the Selling
Holders and each of the Underwriter(s), if any, before filing with the
Commission, a copy of the Shelf Registration Statement, a copy of the
Additional Shelf Registration Statement, as applicable, and copies of any Prospectus
included therein or any amendments or supplements to the Shelf Registration
Statement, the Additional Shelf Registration Statement or Prospectus, as
applicable, (other than documents incorporated by reference after the initial
filing of the Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable), which documents will be subject to the review of
such persons, counsel and Underwriter(s), if any, for a period of at least five
Business Days (in the case of the Shelf Registration Statement or Additional
Shelf Registration Statement, as applicable, and the Prospectus) and two
Business Days (in the case of any amendment or supplement thereto), and the
Company will not file the Shelf Registration Statement, the Additional Shelf
Registration Statement or Prospectus, as applicable, or any amendment or
supplement to the Shelf Registration Statement, the Additional Shelf
Registration Statement or Prospectus, as applicable (other than documents
incorporated by reference therein), to which the Initial Purchaser, such
counsel or the Underwriter(s), if any, shall reasonably object prior to the
filing thereof.  The Initial Purchaser,
such counsel or Underwriter(s), if any, shall be deemed to have reasonably
objected to such filing if the Shelf Registration Statement, Additional Shelf
Registration Statement, Prospectus or any amendment or supplement thereto, as
applicable, as proposed to be filed, contains a material misstatement or
omission (other than such misstatement or omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
a Notice Holder or Underwriter).


 


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(v)                   Make available at reasonable
times for inspection by the selling Holders, any Underwriter participating in
any distribution pursuant to the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, and any attorney or accountant
retained by such selling Holders or any of the Underwriter(s), all financial
and other records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the Company’s officers, directors, managers
and employees to supply all information reasonably requested by any such
selling Holders, Underwriter, attorney or accountant in connection with the
Shelf Registration Statement or the Additional Shelf Registration Statement, as
applicable, after the filing thereof and before its effectiveness; provided,
however, that any information designated by the Company as
confidential at the time of delivery of such information shall be kept
confidential by the recipient thereof.


 


(vi)                  If requested by any selling
Holders or the Underwriter(s), if any, promptly incorporate in the Shelf
Registration Statement, the Additional Shelf Registration Statement or
Prospectus, as applicable, pursuant to a supplement or post-effective amendment
if necessary, such information as such selling Holders and Underwriter(s), if
any, may reasonably request to have included therein, including, without
limitation: (1) information relating to the “Plan of Distribution” of the
Transfer Restricted Securities, (2) information with respect to the principal
amount of Debentures or number of shares of Common Stock being sold to such
Underwriter(s), (3) the purchase price being paid therefor and (4) any other
terms of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as reasonably practicable after the Company is
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment.


 


(vii)                 Furnish to each selling Holder
and each of the Underwriter(s), if any, without charge, at least one copy of
the Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable, as first filed with the Commission, and of each amendment
thereto (and any documents incorporated by reference therein or exhibits
thereto (or exhibits incorporated in such exhibits by reference) as such Person
may request).


 


(viii)                Deliver to each selling Holder
and each of the Underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to any
notice by the Company in accordance with this Section 4(b) of the existence of
any fact or event of the kind described in Section 4(b)(iii)(D), the Company
hereby consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the Underwriter(s), if any,
in connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement thereto.


 


12

















 


(ix)                   In the case
of an Underwritten Offering conducted pursuant to Section 7, the Company shall:


 


(A)          upon request, furnish to each selling
Holder and each Underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to underwriters in
secondary underwritten offerings for selling security holders, upon the date of
closing of any sale of Transfer Restricted Securities in an Underwritten
Registration:


 


(1)           a certificate, dated
the date of such closing, signed by the Chief Executive Officer or Chief
Financial Officer of the Company confirming, as of the date thereof, matters of
the type set forth in Section 5(h) of the Purchase Agreement and such other
matters as such parties may reasonably request;


 


(2)           opinions, each dated
the date of such closing, of counsel to the Company covering such of the
matters as are customarily covered in legal opinions to underwriters in
connection with underwritten offerings of securities; and


 


(3)           customary comfort
letters, dated the date of such closing, from the Company’s independent accountants
in the customary form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with underwritten offerings of
securities;


 


(B)           set forth in full in the underwriting
agreement, if any, indemnification provisions and procedures which provide
rights no less protective than those set forth in Section 6 hereof with respect
to all parties to be indemnified; and


 


(C)           deliver such other documents and
certificates as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the selling
Holders pursuant to this clause (ix).


 


(x)                    Before any public offering
of Transfer Restricted Securities, cooperate with the selling Holders, the
Underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or blue sky laws of such jurisdictions in the United States as the
selling Holders or Underwriter(s), if any, 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
Shelf Registration Statement or the Additional Shelf Registration Statement, as
applicable; provided, that the Company will not be required to qualify to
do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process or to taxation
in any such jurisdiction where it is not then so subject.


 


13

















 


(xi)                   Cooperate with the selling
Holders and the Underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted Securities to be in such denominations
and registered in such names as the selling Holders or the Underwriter(s), if
any, may request at least two Business Days before any sale of Transfer
Restricted Securities made by such Underwriter(s).


 


(xii)                  Use its reasonable best
efforts to cause the Transfer Restricted Securities covered by the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, to be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or sellers
thereof or the Underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities.


 


(xiii)                 Provide CUSIP numbers for all
Transfer Restricted Securities not later than the effective date of the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, and provide the Trustee under the Indenture with certificates for
the Debentures that are in a form eligible for deposit with The Depository
Trust Company.


 


(xiv)                Cooperate and assist in any
filings required to be made with the NASD and the NYSE and in the performance
of any due diligence investigation by any Underwriter that is required to be
retained in accordance with the rules and regulations of the NASD and the NYSE.


 


(xv)                 Otherwise use its reasonable
best efforts to comply with all applicable rules and regulations of the
Commission and all reporting requirements under the Exchange Act.


 


(xvi)                Cause the Indenture to be
qualified under the TIA not later than the effective date of the Shelf
Registration Statement or Additional Shelf Registration Statement, as
applicable, required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Debentures to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its reasonable best
efforts to cause the Trustee thereunder to execute all documents that may be
required to effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so qualified in a
timely manner.


 


(xvii)               Cause all shares of Common Stock
covered by the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system on which similar
securities issued by the Company are then listed or quoted.


 


14

















 


(xviii)              Provide to each Holder upon
written request each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act after the
effective date of the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable.


 


(xix)                 If requested by the
Underwriter(s), make appropriate officers of the Company available to the
Underwriter(s) for meetings with prospective purchasers of the Transfer
Restricted Securities and prepare and present to potential investors customary
“road show” or marketing materials in a manner consistent with similar
issuances of other securities similar to the Transfer Restricted Securities.


 


(c)   Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the kind
described in Section 4(b)(iii)(C) or (D) hereof, such Holder will, and will use
its reasonable best efforts to cause any Underwriter(s) in an Underwritten
Offering to, forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, until:


 


(i)                    such Holder has received
copies of the supplemented or amended Prospectus contemplated by Section
4(b)(i) and 4(b)(viii) hereof; or


 


(ii)                   such Holder is advised in
writing by the Company that the use of the Prospectus, or any amendment or
supplement thereto, may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus.


 


If so directed by
the Company, each Holder will deliver to the Company (at the Company’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 such notice of suspension.


 


5.     Registration
Expenses.  All expenses incident to the
Company’s performance of or compliance with this Agreement shall be borne by
the Company regardless of whether a Shelf Registration Statement or any
Additional Shelf Registration Statement becomes effective, including, without
limitation:


 


(i)                    all registration and filing
fees and expenses (including filings made by any Initial Purchaser or Holders
with the NASD or the NYSE);


 


(ii)                   all fees and expenses of
compliance with federal securities and state blue sky or securities laws;


 


(iii)                  all expenses of printing
(including printing of Prospectuses and certificates for the Common Stock to be
issued upon conversion of the Debentures) and the Company’s expenses for
messenger and delivery services and telephone;


 


15

















 


(iv)                  all fees and disbursements of
counsel to the Company and, subject to Section 5(b) below, the Holders of
Transfer Restricted Securities;


 


(v)                   all application and filing
fees in connection with listing (or authorizing for quotation) the Common Stock
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 Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).


 


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


 


(b)   In
connection with the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, required by this Agreement, including
any amendment or supplement thereto, and any other documents delivered to any
Holders, the Company shall reimburse the Initial Purchaser and the Holders of
Transfer Restricted Securities being registered pursuant to the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, which shall be Cleary Gottlieb Steen & Hamilton, or such other
counsel as may be chosen by a Majority of Holders for whose benefit the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, is being prepared.  The
Holders of Transfer Restricted Securities being registered shall be responsible
for all underwriting commissions or discounts, if any, attributable to the sale
of such Transfer Restricted Securities pursuant to any Underwritten Offering.


 


6.     Indemnification and Contribution.


 


(a)   The
Company shall indemnify and hold harmless each Holder, such Holder’s officers,
directors, partners and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (each, an “Indemnified
Holder”), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become subject,
under the Act or otherwise, insofar as any such loss, claim, damage, liability
or action arises out of, or is based upon:


 


(i)                    any untrue statement or
alleged untrue statement of a material fact contained in (A) the Shelf
Registration Statement, Additional Shelf Registration Statement or Prospectus
or any amendment or supplement thereto, as applicable, or (B) any blue sky
application or other document or any amendment or supplement thereto prepared
or executed by the Company (or based upon written information furnished by or
on behalf of the Company) filed in any jurisdiction specifically for the
purpose of qualifying any or all of the Transfer Restricted Securities under
the securities law of any 


 


16

















 


state or other jurisdiction
(such application, document or information being hereinafter called a “Blue
Sky Application”); or


 


(ii)                   the omission or alleged
omission to state therein any material fact necessary to make the statements
therein (in the case of the Prospectus, or any amendment or supplement thereto,
in the light of the circumstances under which they were made) not misleading;
or


 


(iii)                  any act or failure to act or
any alleged act or failure to act by the Initial Purchaser in connection with,
or relating in any manner to, the Debentures or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be liable under
this clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failure to act undertaken or
omitted to be taken by the Initial Purchaser through its gross negligence or
willful misconduct),


 


and shall
reimburse each Indemnified Holder promptly upon demand for any legal or other
expenses reasonably incurred by such Indemnified Holder in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the Shelf
Registration Statement, the Additional Shelf Registration Statement or
Prospectus or amendment or supplement thereto or in any Blue Sky Application in
reliance upon and in conformity with written information furnished to the Company
by or on behalf of such Indemnified Holder specifically for inclusion therein; provided, further, that as to any
Prospectus or any amendment or supplement thereto, this indemnity agreement
shall not inure to the benefit of any Indemnified Holder on account of any
loss, claim, damage, liability or action arising from the sale of Transfer
Restricted Securities to any person by that Indemnified Holder if that
Indemnified Holder failed to send or give a copy of the Prospectus or any
amendment or supplement thereto, to that person, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Prospectus or any amendment or supplement thereto
was corrected in the Prospectus or any amendment or supplement thereto, unless
such failure resulted from non-compliance by the Company with Section
4(b)(viii).  The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Indemnified Holder.


 


(b)   Each
Holder, severally and not jointly, shall indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer, or controlling person may
become subject, insofar as any such loss, claim, damage or liability or action
arises out of, or is based upon:


 


17

















 


(i)                    any untrue statement or
alleged untrue statement of any material fact contained in the Shelf
Registration Statement, the Additional Shelf Registration Statement or
Prospectus or any amendment or supplement thereto, or in any Blue Sky
Application, as applicable; or


 


(ii)                   the omission or the alleged
omission to state therein (in the case of the Prospectus, or any amendment or
supplement thereto, in the light of the circumstances under which they were
made) any material fact necessary to make the statements therein not
misleading,


 


but in each case
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Holder (or
its related Indemnified Holder) specifically for use therein, and shall
reimburse the Company and any such officer or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred.  The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to the Company
and any such director, officer or controlling person.  In no event shall the liability of any selling Holder of Transfer
Restricted Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Transfer Restricted
Securities pursuant to the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, giving rise to such indemnification
obligation.


 


(c)   Promptly
after receipt by an indemnified party under this Section 6 of notice of any
claim or the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the claim or the
commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 6 except to
the extent it has been materially prejudiced (including, without limitation,
the forfeiture of substantial rights and defenses) by such failure and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6.  If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. 
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided, however, that a Majority of
Holders shall have the right to employ separate counsel to represent jointly a
Majority of Holders and their respective officers, directors, partners,
employees and controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by a Majority of
Holders against the Company under this Section 6, if, (i) the employment of
such counsel shall have been specifically authorized in writing by the 


 


18

















 


indemnifying party, (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 that 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),
and in any such event the fees and expenses of such separate counsel shall be
paid by the Company.  No indemnifying
party shall:


 


(i)                    without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld or delayed) settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not contain any
statement as to or admission of fault, culpability or failure to act by or on
behalf of any indemnified party; or


 


(ii)                   be liable for any settlement
of any such action effected without its written consent (which consent shall
not be unreasonably withheld or delayed), but if settled with a written consent
from the indemnifying party or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by reason
of such settlement.


 


(d)   If
the indemnification provided for in this Section 6 shall for any reason be
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b) in respect of any loss, claim, damage or liability, or action in
respect thereof, referred to therein, each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof:


 


(i)                    in such proportion as shall
be appropriate to reflect the relative benefits received by the Company from
the offering and sale of the Transfer Restricted Securities on the one hand and
a Holder with respect to the sale by such Holder of the Transfer Restricted
Securities on the other; or


 


(ii)                   if the allocation provided by
clause (6)(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
6(d)(i) but also the relative fault of the Company on the one hand and the
Holders on the other with respect to the statements or omissions or alleged
statements or alleged omissions that resulted in such loss, claim, damage or
liability (or action in respect thereof), as well as any other relevant
equitable considerations.


 


19

















 


The relative
benefits received by the Company on the one hand and a Holder on the other with
respect to such offering and such sale shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Debentures
purchased under the Purchase Agreement (before deducting expenses) received by
the Company on the one hand, bear to the total proceeds received by such Holder
with respect to its sale of Transfer Restricted Securities on the other.  The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Holders, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission.  The Company and each Holder agree that it would not be just and
equitable if the amount of contribution pursuant to this Section 6(d) were
determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to herein. 
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to above
in this Section 6(d) shall be deemed to include, for purposes of this Section
6(d), any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this
Section 6(d), no Holder shall be required to contribute any amount in excess of
the amount by which the total price at which the Transfer Restricted Securities
purchased by it were resold 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.  The Holders’ obligations to contribute as
provided in this Section 6(d) are several and not joint.


 


7.     Underwritten
Offerings


 


(a)     During the Effectiveness Period, any Holder
of Transfer Restricted Securities who desires to do so may sell Transfer
Restricted Securities (in whole or in part) in an Underwritten Offering; provided, that (i) the Holders of at least
50% in aggregate principal amount of the Transfer Restricted Securities then
covered by the Shelf Registration Statement or Additional Shelf Registration
Statement, as applicable, shall request such an offering and (ii) at least such
aggregate principal amount of such Transfer Restricted Securities shall be
included in such offering (but in no event shall the Company be required to
undertake an Underwritten Offering of Transfer Restricted Securities having an
aggregate public offering price of less than $25,000,000); and provided, further, that the Company shall not be obligated to cooperate with more
than one Underwritten Offering (whether or not completed).  Upon receipt of such a request, the Company
shall promptly provide all Holders of Transfer Restricted Securities written
notice of the request, which notice shall inform such Holders that they have
the opportunity to participate in the offering.  In any such Underwritten Offering, the investment banker or
bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto (including
the size of the offering) will be approved by, the holders of a majority of the
Transfer Restricted Securities to be included in such offering; provided,
however,
that such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company. 
The Company is not obligated to any undertakings not specifically
referred to herein.


 


20

















 


(b)     No Holder may participate in any
Underwritten Offering contemplated hereby unless (a) such Holder agrees to sell
such Holder’s Transfer Restricted Securities to be included in the Underwritten
Offering in accordance with any approved underwriting arrangements, (b) such
Holder completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such approved underwriting arrangements,
and (c) such Holder returns a completed and signed Questionnaire to the Company
in accordance with Section 2(b) hereof within a reasonable amount of  time before
such Underwritten Offering.  The Holders
participating in any Underwritten Offering shall be responsible for any
underwriting discounts and commissions and, subject to Section 5 hereof,
expenses of their own counsel.  The
Company shall be entitled to select and manage the printer for such offering
and any other vendors whose expenses the Company is obligated to pay.  The Company shall pay all expenses
customarily borne by issuers in an Underwritten Offering, including but not
limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such Underwritten Offering (which expenses shall not exceed $150,000 in
the aggregate).  Notwithstanding the
foregoing or the provisions of Section 4(b)(ix) hereof, upon receipt of a
request from the managing underwriter or a representative of holders of a
majority of the Transfer Restricted Securities to be included in an Underwritten
Offering to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an Underwritten
Offering, the Company may delay its participation in the Underwritten Offering,
including, without limitation, the filing of any such amendment or supplement
for up to 90 days if the board of directors of the Company shall have
determined in good faith that the Company has a bona fide business reason for
such delay.


 


8.     Miscellaneous.


 


(a)   Remedies.  The Company
acknowledges and agrees that any failure by the Company to comply with its
obligations under Section 2 hereof may result in material irreparable injury to
the Initial Purchaser or the Holders for which there is no adequate remedy at
law, that it 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 Company’s obligations under Section 2 hereof; provided, that specific performance shall be the sole
equitable remedy available to Holders hereunder.  The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.


 


(b)   Actions Affecting Transfer
Restricted Securities.  The
Company shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.


 


(c)   No Inconsistent Agreements.  The Company will not, 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 hereof.  In addition, the Company shall not grant to any of its security
holders (other than the Holders of Transfer Restricted Securities in such
capacity) the right to include any of its securities in the Shelf Registration
Statement or the Additional Shelf Registration Statement, as 


 


21

















 


applicable, provided for in this Agreement
other than the Transfer Restricted Securities. 
The Company has not previously entered into any agreement (which has not
expired or been terminated) granting any registration rights with respect to
its securities to any Person which rights conflict with the provisions hereof.


 


(d)   Amendments and Waivers.  This Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of a Majority of Holders
or such greater percentage of the Holders as required by the Indenture.


 


(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), telex, facsimile
transmission, 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 or the
transfer agent of the Common Stock, as the case may be; and


 


22

















 


(ii)                   if to the
Company:


 


Fleetwood Enterprises, Inc.

3125 Myers Street

Riverside, California 92503

Attention:  General Counsel

Fax: (909) 351-3776

Telephone: (909) 351-3500


 


With a copy to:


 


Gibson, Dunn & Crutcher
LLP


4 Park Plaza


Irvine, California 92614


Attention: Mark W.
Shurtleff, Esq.


Fax: (909) 475-4665


Telephone: (909) 451-3802


 


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 answered back, if
telexed; when receipt acknowledged, if transmitted by facsimile; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.


 


(f)    Successors and Assigns.  This Agreement shall inure to the benefit of and be binding upon
and enforceable by the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of
or be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from such
Holder and (ii) nothing contained herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms 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.


 


(g)   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.


 


(h)   Securities Held by the Company or Its Affiliates.  Whenever the consent or approval of Holders
of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its Affiliates
shall not be 


 


23

















 


counted in determining whether such consent
or approval was given by the Holders of such required percentage.


 


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


 


(j)    Governing Law.  This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.


 


(k)   Severability.  If 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.


 


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


 


24

















 


In Witness Whereof, the parties have executed
this Agreement as of the date first written above.


 


	
   

  	
  Fleetwood Enterprises,
  Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edward B. Caudill

  
	
   

  	
   

  	
  Name: Edward B. Caudill

  
	
   

  	
   

  	
  Title:   President and Chief Executive Officer 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Lehman Brothers Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John M. Welsh

  
	
   

  	
   

  	
  Authorized Representative

  
	
   

  	
   

  	
  John M. Welsh

  
	
   

  	
   

  	
  Vice President