exv4w15



 








Exhibit 4.15




ACTIVANT SOLUTIONS HOLDINGS INC.




$40,000,000




Senior Floating Rate PIK Notes due 2011




EXCHANGE AND REGISTRATION RIGHTS AGREEMENT




October 17, 2005




DEUTSCHE BANK SECURITIES INC.

J. P. MORGAN SECURITIES INC.

c/o Deutsche Bank Securities Inc.

     60 Wall Street

     New York, New York 10005




Ladies and Gentlemen:




          Activant Solutions Holdings Inc., a Delaware corporation (the “Issuer”), proposes to
issue and sell to Deutsche Bank Securities Inc. (the “Representative”) and J.P. Morgan
Securities Inc. (each an “Initial Purchaser”, and together the “Initial
Purchasers”), upon the terms and subject to the conditions set forth in a purchase agreement
dated October 17, 2005 (the “Purchase Agreement”) between the Issuer and the Initial
Purchasers, $40,000,000 aggregate principal amount of its Senior Floating Rate PIK Notes due 2011
(the “Notes”). Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Purchase Agreement.



          As an inducement to the Initial Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Initial Purchasers thereunder, the Issuer
agrees with the Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers) of the Notes, the Exchange Notes (as defined herein) and the Private Exchange Notes (as
defined herein) (collectively, the “Holders”), as follows:



          1. Registered Exchange Offer. The Issuer shall (i) use its reasonable best efforts to
prepare and, not later than 180 days following the date of original issuance of the Notes (the
“Issue Date”), file with the Commission a registration statement (the “Exchange Offer
Registration Statement”) on an appropriate form under the Securities Act with respect to a
proposed offer to the Holders of the Notes (the “Registered Exchange Offer”) to issue and
deliver to such Holders, in exchange for the Notes, a like aggregate principal amount of debt
securities of the Issuer that are identical in all material respects to the Notes (the
“Exchange Notes”), except that the Exchange Notes will not contain terms with respect to
transfer restrictions, (ii) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act no later than 270 days after
the Issue Date and the









 



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Registered Exchange Offer to be consummated no later than 300 days after the Issue Date and
(iii) keep the Exchange Offer Registration Statement effective for not less than 20 business days
(or longer, if required by applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer
Registration Period”). The Exchange Notes will be issued under the Indenture or an indenture
(the “Exchange Notes Indenture”) between the Issuer and the Trustee or such other bank or
trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the
“Exchange Notes Trustee”), such indenture to be identical in all material respects to the
Indenture, except with respect to the transfer restrictions relating to the Notes (as described
above).



          Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall as soon
as practicable commence the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Notes for Exchange Notes (assuming that
such Holder (a) is not an affiliate (as defined in Rule 405 under the Securities Act) of the Issuer
or an Exchanging Dealer (as defined herein) not complying with the requirements of the next
sentence, (b) is not an Initial Purchaser holding Notes that have, or that are reasonably likely to
have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Notes
in the ordinary course of such Holder’s business and (d) has no arrangements or understandings with
any person to participate in the distribution of the Exchange Notes) and to trade such Exchange
Notes from and after their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several states of the United
States. The Issuer, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant
to current interpretations by the Commission’s staff of Section 5 of the Securities Act, (i) each
Holder that is a broker-dealer electing to exchange Notes acquired for its own account as a result
of market-making activities or other trading activities for Exchange Notes (an “Exchanging
Dealer”) is required to deliver a prospectus containing substantially the information set forth
in Annex A hereto on the cover of such prospectus, in Annex B hereto in the
“Exchange Offer Procedures” and “Purpose of the Exchange Offer” sections of such prospectus, and in
Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with
a sale of any such Exchange Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer and (ii) if an Initial Purchaser elects to sell Private Exchange Notes (as defined
below) acquired in exchange for Notes constituting any portion of an unsold allotment, it is
required to deliver a prospectus containing the information required by Items 507 and 508 of
Regulation S-K under the Securities Act and the Exchange Act (“Regulation S-K”), as
applicable, in connection with such sale.



          Upon consummation of the Registered Exchange Offer in accordance with this Section 1, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to
Transfer Restricted Notes (as defined) that are Private Exchange Notes, Exchange Notes as to which
clause (v) of the first paragraph of Section 2 is applicable and Exchange Notes held by Exchanging
Dealers, and the Issuer shall have no further obligations to









 



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register Transfer Restricted Notes (other than Private Exchange Notes and other than in
respect of any Exchange Notes as to which clause (v) of the first paragraph of Section 2 hereof
applies) pursuant to Section 2 hereof.



          If, prior to the consummation of the Registered Exchange Offer, any Holder holds any Notes
acquired by it that have, or that are reasonably likely to be determined to have, the status of an
unsold allotment in an initial distribution, or any Holder is not entitled to participate in the
Registered Exchange Offer, the Issuer shall, upon the request of any such Holder, simultaneously
with the delivery of the Exchange Notes in the Registered Exchange Offer, issue and deliver to any
such Holder, in exchange for the Notes held by such Holder (the “Private Exchange”), a like
aggregate principal amount of debt securities of the Issuer that are identical in all material
respects to the Exchange Notes (the “Private Exchange Notes”), except with respect to the
transfer restrictions relating to such Private Exchange Notes. The Private Exchange Notes will be
issued under the same indenture as the Exchange Notes, and the Issuer shall use its reasonable best
efforts to cause the Private Exchange Notes to bear the same CUSIP number as the Exchange Notes.




     In connection with the Registered Exchange Offer, the Issuer shall:




     (a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;




     (b) keep the Registered Exchange Offer open for not less than 20 business days (or
longer, if required by applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders;




     (c) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan, The City of New York;




     (d) permit Holders to withdraw tendered Notes at any time prior to the close of
business, New York City time, on the last business day on which the Registered Exchange
Offer shall remain open; and




     (e) otherwise comply in all respects with all laws that are applicable to the
Registered Exchange Offer.



          As soon as practicable after the close of the Registered Exchange Offer and any Private
Exchange, as the case may be, the Issuer shall:




     (a) accept for exchange all Notes tendered and not validly withdrawn pursuant to the
Registered Exchange Offer and the Private Exchange Offer;









 



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     (b) deliver to the Trustee for cancellation all Notes so accepted for exchange; and




     (c) cause the Trustee or the Exchange Notes Trustee, as the case may be, promptly to
authenticate and deliver to each Holder, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.



          The Issuer shall use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained therein in order to permit
such prospectus to be used by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such requirements in order
to resell the Exchange Notes; provided that the Issuer shall make such prospectus and any
amendment or supplement thereto available to any broker-dealer for use in connection with any
resale of any Exchange Notes for a period of 90 days after the consummation of the Registered
Exchange Offer.



          The Indenture or the Exchange Notes Indenture, as the case may be, shall provide that the
Notes, the Exchange Notes and the Private Exchange Notes shall vote and consent together on all
matters as one class and that none of the Notes, the Exchange Notes or the Private Exchange Notes
will have the right to vote or consent as a separate class on any matter.



          Interest on each Exchange Note and Private Exchange Note issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the Issue Date.



          Each Holder participating in the Registered Exchange Offer shall be required to represent to
the Issuer that at the time of the consummation of the Registered Exchange Offer (i) any Exchange
Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the distribution of
the Notes or the Exchange Notes within the meaning of the Securities Act and (iii) such Holder is
not an affiliate (as defined in Rule 405 under the Securities Act) of any of the Issuer or, if it
is such an affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.



          Notwithstanding any other provisions hereof, Issuer will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Exchange Offer 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









 



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forming part of any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not, as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.



          2. Shelf Registration. If (i) because of any change in law or applicable
interpretations thereof by the Commission’s staff the Issuer is not permitted to effect the
Registered Exchange Offer as contemplated by Section 1 hereof, or (ii) any Notes validly tendered
pursuant to the Registered Exchange Offer are not exchanged for Exchange Notes within 300 days
after the Issue Date, or (iii) any Initial Purchaser so requests in writing within 180 days after
the Registered Exchange Offer with respect to Private Exchange Notes, or (iv) any applicable law or
interpretations do not permit any Holder to participate in the Registered Exchange Offer, or (v)
any Holder that participates in the Registered Exchange Offer does not receive freely transferable
Exchange Notes in exchange for tendered Notes, or (vi) the Issuer so elects, then the following
provisions shall apply:




     (a) The Issuer shall use its reasonable best efforts to file as promptly as practicable
(but in no event more than 180 days after so required or requested, in each case pursuant to
this Section 2) with the Commission, and thereafter shall use its reasonable best efforts to
cause to be declared effective, a shelf registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted Notes by the
Holders thereof from time to time in accordance with the methods of distribution set forth
in such registration statement (hereafter, a “Shelf Registration Statement” and,
together with any Exchange Offer Registration Statement, a “Registration
Statement”); provided, however, that no Holder of Notes or Exchange
Notes (other than the Initial Purchasers) shall be entitled to have Notes or Exchange Notes
held by it covered by such Shelf Registration Statement, unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to such Holder.




     (b) The Issuer shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus forming part thereof to
be used by Holders of Transfer Restricted Notes for a period ending on the earlier of two
years from the Issue Date or the date on which all the Transfer Restricted Notes covered by
the Shelf Registration Statement have been sold pursuant thereto (in any such case, such
period being called the “Shelf Registration Period”). The Issuer shall be deemed
not to have used its reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that would result
in Holders of Transfer Restricted Notes covered thereby not being able to offer and sell
such Transfer Restricted Notes during that period, unless such action is required by
applicable law; provided, however, that the foregoing









 



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shall not apply to actions taken by the Issuer in good faith and for valid business
reasons (not including avoidance of their obligations hereunder), including, without
limitation, the acquisition or divestiture of assets, so long as the Issuer within 120 days
thereafter complies with the requirements of Section 4(j) hereof. Any such period during
which the Issuer fails to keep the Shelf Registration Statement effective and usable for
offers and sales of Notes and Exchange Notes is referred to as a “Suspension Period.” A
Suspension Period shall commence on and include the date that the Issuer gives notice that
the Shelf Registration Statement is no longer effective or the prospectus included therein
is no longer usable for offers and sales of Notes and Exchange Notes and shall end on the
date when each Holder of Notes and Exchange Notes covered by such registration statement
either receives the copies of the supplemented or amended prospectus contemplated by Section
4(j) hereof or is advised in writing by the Issuer that use of the prospectus may be
resumed. If one or more Suspension Periods occur, the two-year period referenced above
shall be extended by the aggregate of the number of days included in each Suspension Period.




     (c) Notwithstanding any other provisions hereof, the Issuer will ensure that (i) any
Shelf Registration Statement and any amendment thereto and any prospectus forming part
thereof and any supplement thereto complies in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written information furnished to the
Issuer by or on behalf of any Holder specifically for use therein (the “Holders’
Information”)) does not 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 (in either case, other than with respect to Holders’
Information), does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.



          3. Liquidated Damages. (a) The parties hereto agree that the Holders of Transfer
Restricted Notes will suffer damages if the Issuer fails to fulfill its obligations under Section 1
or Section 2, as applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the applicable Registration Statement is not filed with the
Commission on or prior to 180 days after the Issue Date, (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is not declared effective within
270 days after the Issue Date (or in the case of a Shelf Registration Statement required to be
filed in response to a change in law or the applicable interpretations of the Commission’s staff,
if later, within 45 days after publication of the change in law or interpretation), (iii) the
Registered Exchange Offer is not consummated on or prior to 300 days after the









 



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Issue Date or (iv) the Shelf Registration Statement is filed and declared effective within 270
days after the Issue Date (or in the case of a Shelf Registration Statement required to be filed in
response to a change in law or the applicable interpretations of the Commission’s staff, if later,
within 45 days after publication of the change in law or interpretation) but shall thereafter cease
to be effective (at any time that the Issuer is obligated to maintain the effectiveness thereof)
without being succeeded within 60 days by an additional Registration Statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a “Registration
Default”), the Issuer will be obligated to pay liquidated damages to each Holder of Transfer
Restricted Notes, during the period of one or more such Registration Defaults, in an amount equal
to $0.10 per week per $1,000 principal amount of Transfer Restricted Notes held by such Holder
until (a) the applicable Registration Statement is filed, (b) the Exchange Offer Registration
Statement is declared effective, (c) the Registered Exchange Offer is consummated, (d) the Shelf
Registration Statement is declared effective, (e) the Shelf Registration Statement again becomes
effective or (f) the Shelf Registration Period shall have ended, as the case may be. Following the
cure of all Registration Defaults, the accrual of liquidated damages will cease. As used herein,
the term “Transfer Restricted Notes” means (i) each Note until the date on which such Note
has been exchanged for a freely transferable Exchange Note in the Registered Exchange Offer, (ii)
each Note or Private Exchange Note until the date on which it has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf Registration Statement or (iii)
each Note or Private Exchange Note until the date on which it is distributed to the public pursuant
to Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act. Notwithstanding anything to the contrary in this Section 3(a), the Issuer shall not be
required to pay liquidated damages to a Holder of Transfer Restricted Notes if such Holder failed
to comply with its obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be provided by it, if any,
pursuant to Section 4(n).



          (b) The Issuer shall notify the Trustee and the Paying Agent under the Indenture immediately
upon the happening of each and every Registration Default. The Issuer shall, at its option, pay
(x) the liquidated damages due on the Transfer Restricted Notes by depositing with the Paying Agent
(which may not be any of the Issuer for these purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on the next interest payment date specified by
the Indenture and the Notes, sums sufficient to pay the liquidated damages then due, or (y) through
the issuance of Additional Notes (as defined in the Indenture) in principal amount equal to such
liquidated damages amount, in either case, quarterly on each January 1, April 1, July 1 and
October 1 (to the holders of record on the December 15, March 15, June 15 and September 15
immediately preceding such dates) commencing with the first such date occurring after any such
liquidated damages amount commences to accrue. The liquidated damages due shall be payable on each
interest payment date specified by the Indenture and the Notes to the Holder of record entitled to
receive the interest payment to be made on such date. Each obligation to pay liquidated damages
shall be deemed to accrue from and including the date of the applicable Registration Default.









 



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          (c) The parties hereto agree that the liquidated damages provided for in this Section 3
constitute a reasonable estimate of and are intended to constitute the sole damages that will be
suffered by Holders of Transfer Restricted Notes by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed, (ii) the Shelf
Registration Statement to remain effective or (iii) the Exchange Offer Registration Statement to be
declared effective and the Registered Exchange Offer to be consummated, in each case to the extent
required by this Agreement.



          4. Registration Procedures. In connection with any Registration Statement, the
following provisions shall apply:




     (a) The Issuer shall (i) furnish to each Initial Purchaser, prior to the filing thereof
with the Commission, a copy of the Registration Statement and each amendment thereof and
each supplement, if any, to the prospectus included therein and shall use its reasonable
best efforts to reflect in each such document, when so filed with the Commission, such
comments as the Initial Purchasers may reasonably propose; (ii) if applicable, include the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the “Exchange Offer Procedures” and “Purpose of the Exchange Offer” sections and in
Annex C hereto in the “Plan of Distribution” section of the prospectus forming a
part of the Exchange Offer Registration Statement, and include the information set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by an Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K, as applicable, in the prospectus forming a
part of the Exchange Offer Registration Statement.




     (b) The Issuer shall advise each Initial Purchaser, each Exchanging Dealer and the
Holders (if applicable) and, if requested by any such person, confirm such advice in writing
(which advice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):




     (i) when any Registration Statement and any amendment thereto has been filed
with the Commission and when such Registration Statement or any post-effective
amendment thereto has become effective;




     (ii) of any request by the Commission for amendments or supplements to any
Registration Statement or the prospectus included therein or for additional
information;




     (iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any proceedings for
that purpose;









 



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     (iv) of the receipt by the Issuer of any notification with respect to the
suspension of the qualification of the Notes, the Exchange Notes or the Private
Exchange Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and




     (v) of the happening of any event that requires the making of any changes in
any Registration Statement or the prospectus included therein in order that the
statements therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.




     (c) The Issuer will make every reasonable effort to obtain the withdrawal at the
earliest possible time of any order suspending the effectiveness of any Registration
Statement.




     (d) The Issuer will furnish to each Holder of Transfer Restricted Notes included within
the coverage of any Shelf Registration Statement, without charge, at least one conformed
copy of such Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and, if any such Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).




     (e) The Issuer will, during the Shelf Registration Period, promptly deliver to each
Holder of Transfer Restricted Notes included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Issuer consent to the use of such
prospectus or any amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Notes in connection with the offer and sale of the Transfer Restricted Notes
covered by such prospectus or any amendment or supplement thereto.




     (f) The Issuer will furnish to each Initial Purchaser and each Exchanging Dealer, and
to any other Holder who so requests, without charge, at least one conformed copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if an Initial Purchaser or any Exchanging Dealer or
any such Holder so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).




     (g) The Issuer will, during the Exchange Offer Registration Period or the Shelf
Registration Period, as applicable, promptly deliver to each Initial Purchaser, each
Exchanging Dealer and such other persons that are required to deliver a prospectus following
the Registered Exchange Offer, without charge, as many copies of the









 



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final prospectus included in the Exchange Offer Registration Statement or the Shelf
Registration Statement and any amendment or supplement thereto as the Initial Purchasers,
Exchanging Dealer or other persons may reasonably request; and the Issuer consents to the
use of such prospectus or any amendment or supplement thereto by the Initial Purchasers, any
Exchanging Dealer or other persons, as applicable, as aforesaid.




     (h) Prior to the effective date of any Registration Statement, the Issuer will use its
reasonable best efforts to register or qualify, or cooperate with the Holders of Notes,
Exchange Notes or Private Exchange Notes included therein and their respective counsel in
connection with the registration or qualification of, such Notes, Exchange Notes or Private
Exchange Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale in such jurisdictions of
the Notes, Exchange Notes or Private Exchange Notes covered by such Registration Statement;
provided that the Issuer will not be required to qualify generally 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.




     (i) The Issuer will cooperate with the Holders of Notes, Exchange Notes or Private
Exchange Notes to facilitate the timely preparation and delivery of certificates
representing Notes, Exchange Notes or Private Exchange Notes to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing prior to sales of
Notes, Exchange Notes or Private Exchange Notes pursuant to such Registration Statement.




     (j) If (i) any event contemplated by Section 4(b)(ii) through (v) occurs during the
period for which the Issuer is required to maintain an effective Registration Statement, or
(ii) any Suspension Period remains in effect more than 120 days after the occurrence
thereof, the Issuer will promptly prepare and file with the Commission a post-effective
amendment to the Registration Statement or a supplement to the related prospectus or file
any other required document so that, as thereafter delivered to purchasers of the Notes,
Exchange Notes or Private Exchange Notes from a Holder, the prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.




     (k) Not later than the effective date of the applicable Registration Statement, the
Issuer will provide a CUSIP number for the Notes, the Exchange Notes and the Private
Exchange Notes, as the case may be, and provide the applicable trustee with printed
certificates for the Notes, the Exchange Notes or the Private Exchange









 



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Notes, as the case may be, in a form eligible for deposit with The Depository Trust
Company.




     (l) The Issuer will comply with all applicable rules and regulations of the Commission
and will make generally available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act; provided that in no event shall
such earnings statement be delivered later than 45 days after the end of a 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first month of the Issuer’s
first fiscal quarter commencing after the effective date of the applicable Registration
Statement, which statement shall cover such 12-month period.




     (m) The Issuer will cause the Indenture or the Exchange Notes Indenture, as the case
may be, to be qualified under the Trust Indenture Act as required by applicable law in a
timely manner.




     (n) The Issuer may require each Holder of Transfer Restricted Notes to be registered
pursuant to any Shelf Registration Statement to furnish to the Issuer such information
concerning the Holder and the distribution of such Transfer Restricted Notes as the Issuer
may from time to time reasonably require for inclusion in such Shelf Registration Statement,
and the Issuer may exclude from such registration the Transfer Restricted Notes of any
Holder that fails to furnish such information within a reasonable time after receiving such
request.




     (o) In the case of a Shelf Registration Statement, each Holder of Transfer Restricted
Notes to be registered pursuant thereto agrees by acquisition of such Transfer Restricted
Notes that, upon receipt of any notice from the Issuer (i) of a Suspension Period under
Section 2(b) hereof or (ii) pursuant to Section 4(b)(ii) through (v) hereof, such Holder
will discontinue disposition of such Transfer Restricted Notes until such Holder’s receipt
of (x) notice that the Suspension Period has ended or (y) copies of the supplemental or
amended prospectus contemplated by Section 4(j) hereof, as the case may be, or until advised
in writing (the “Advice”) by the Issuer that the use of the applicable prospectus
may be resumed. If the Issuer shall give any notice under Section 4(b)(ii) through (v)
during the period that the Issuer is required to maintain an effective Registration
Statement (the “Effectiveness Period”), such Effectiveness Period shall be extended
by the number of days during such period from and including the date of the giving of such
notice to and including the date when each seller of Transfer Restricted Notes covered by
such Registration Statement shall have received (x) the copies of the supplemental or
amended prospectus contemplated by Section 4(j) (if an amended or supplemental prospectus is
required) or (y) the Advice (if no amended or supplemental prospectus is required).









 



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     (p) In the case of a Shelf Registration Statement, the Issuer shall enter into such
customary agreements (including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as Holders of a majority in aggregate principal
amount of the Notes, Exchange Notes and Private Exchange Notes being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any disposition of
Notes, Exchange Notes or Private Exchange Notes pursuant to such Shelf Registration
Statement.




     (q) In the case of a Shelf Registration Statement, the Issuer shall (i) make reasonably
available for inspection by a representative of, and Special Counsel (as defined below)
acting for, Holders of a majority in aggregate principal amount of the Notes, Exchange Notes
and Private Exchange Notes being sold and any underwriter participating in any disposition
of Notes, Exchange Notes or Private Exchange Notes pursuant to such Shelf Registration
Statement, all relevant financial and other records, pertinent corporate documents and
properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to
have its officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or any such
underwriter (an “Inspector”) in connection with such Shelf Registration Statement;
provided that the Inspectors shall first agree in writing with the Issuer that any
information that is reasonably designated by the Issuer as confidential at the time of
delivery of such information shall be kept confidential by such persons and shall be used
solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of
such information is required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus referred to in
this Agreement), (iii) such information becomes generally available to the public other than
as a result of a disclosure or failure to safeguard by any such person, (iv) such
information becomes available to any such person from a source other than the Issuer and
such source is not bound by a confidentiality agreement or (v) such information relates to
the U.S. federal income tax treatment or U.S. federal income tax structure of the
Transactions or materials of any kind relating to such tax treatment or tax structure,
including opinions or other tax analyses. Any person legally compelled to disclose any such
confidential information made available for inspection shall provide the Issuer with prompt
prior written notice of such requirement so that the Issuer may seek a protective order or
other appropriate remedy.




     (r) In the case of a Shelf Registration Statement, the Issuer shall, if requested by
Holders of a majority in aggregate principal amount of the Notes, Exchange Notes and Private
Exchange Notes being sold, their Special Counsel or the managing underwriters (if any) in
connection with such Shelf Registration Statement,









 



-13-



use its reasonable best efforts to cause (i) its counsel to deliver an opinion relating
to the Shelf Registration Statement and the Notes, Exchange Notes or Private Exchange Notes,
as applicable, in customary form and (ii) its officers to execute and deliver all customary
documents and certificates requested by Holders of a majority in aggregate principal amount
of the Notes, Exchange Notes and Private Exchange Notes being sold, their Special Counsel or
the managing underwriters (if any). In addition, in the case of a Shelf Registration
Statement, the Issuer shall, if requested by Holders of a majority in aggregate principal
amount of the Notes, Exchange Notes and Private Exchange Notes being sold, their Special
Counsel, or the managing underwriters (if any) in connection with such Shelf Registration
Statement, but only if the registration is an underwritten registration, use its reasonable
best efforts to cause its independent public accountants to provide a comfort letter or
letters in customary form, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.



          5. Registration Expenses. The Issuer will bear all expenses (other than any
underwriters discounts or commissions in connection with the distribution of the Notes, Exchange
Notes or Private Exchange Notes) incurred in connection with the performance of its obligations
under Sections 1, 2, 3 and 4 and the Issuer will reimburse the Initial Purchasers and the Holders
for the reasonable fees and disbursements of one firm of attorneys (in addition to any local
counsel) chosen by the Holders of a majority in aggregate principal amount of the Notes, the
Exchange Notes and the Private Exchange Notes to be sold pursuant to each Registration Statement
(the “Special Counsel”) acting for the Initial Purchasers or Holders in connection
therewith.



          6. Indemnification. (a) In the event of a Shelf Registration Statement or in
connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an
Initial Purchaser or an Exchanging Dealer, as applicable, the Issuer shall indemnify and hold
harmless each Holder (including, without limitation, each Initial Purchaser or any Exchanging
Dealer), its affiliates, each person who controls such Holder or such affiliates within the meaning
of the Securities Act or Exchange Act and their respective officers, directors, employees,
representatives and agents (collectively referred to for purposes of this Section 6 and Section 7
as a “Holder”) from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of Notes, Exchange Notes or Private Exchange Notes), to
which that Holder may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as 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 any such
Registration Statement or any prospectus forming part thereof or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the









 



-14-



statements therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however, that
the Issuer 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, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in reliance upon and in
conformity with any Holders’ Information; and provided further, however,
that with respect to any such untrue statement in or omission from any related preliminary
prospectus (as amended or supplemented) or, if amended or supplemented, any related final
prospectus (excluding the correcting amendment or supplement), the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any such Holder from whom the person asserting
any such loss, claim, damage, liability or action received Notes, Exchange Notes or Private
Exchange Notes to the extent that such loss, claim, damage, liability or action of or with respect
to such Holder results from the fact that both (A) a copy of the final prospectus (together with
any correcting amendments or supplements) was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes, Exchange Notes or Private Exchange Notes to such
person and (B) the untrue statement in or omission from any related preliminary prospectus (as
amended or supplemented) or, if amended or supplemented, any related final prospectus (excluding
the correcting amendment or supplement) was corrected in the final prospectus or, if applicable, an
amendment or supplement thereto and the final prospectus (as amended or supplemented) does not
contain any other untrue statement or omission or alleged untrue statement or omission of a
material fact unless, in either case, such failure to deliver the final prospectus was a result of
non-compliance by the Issuer with Sections 4(d), 4(f) or 4(g).



          (b) In the event of a Shelf Registration Statement, each Holder, severally and not jointly,
shall indemnify and hold harmless the Issuer, its affiliates, each person who controls the Issuer
or any such affiliates within the meaning of the Securities Act or Exchange Act and their
respective officers, directors, employees, representatives and agents (collectively referred to for
purposes of this Section 6(b) and 7 as the “Issuer”), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the Issuer may become
subject, whether commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise, insofar as 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 any such Registration Statement or any
prospectus forming part thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was









 



-15-



made in reliance upon and in conformity with any Holders’ Information furnished to the Issuer
by such Holder, and shall reimburse the Issuer for any legal or other expenses reasonably incurred
by the Issuer in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that no such Holder shall
be liable for any indemnity claims hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Notes, Exchange Notes or Private Exchange Notes pursuant to such Shelf
Registration Statement.



          (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 pursuant to Section 6(a) or 6(b), 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 that it has been materially
prejudiced by such failure; and provided further, however, 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 the reasonable costs of investigation; provided, however, that
an indemnified party shall have the right to employ its own counsel in any such action, but the
fees, expenses and other charges of such counsel for the indemnified party will be at the expense
of such indemnified party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded
(based upon advice of counsel to the indemnified party) that there may be legal defenses available
to it or other indemnified parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based upon advice of counsel to
the indemnified party) between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party
or parties. It is understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other









 



-16-



charges of more than one separate firm of attorneys (in addition to any local counsel) at any
one time for all such indemnified party or parties. Any such separate firm (x) for an Initial
Purchaser, its affiliates, directors and officers and any person who controls such Initial
Purchaser shall be designated in writing by the Representative, (y) for any Holder, its directors
and officers and any person who controls such Holder shall be designated in writing by the Holders
of a majority of the aggregate principal amount of the outstanding registrable Notes and (z) in all
other cases shall be designated in writing by the Issuer. Each indemnified party, as a condition
of the indemnity agreements contained in Sections 6(a) and 6(b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if settled with its written
consent 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 or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be unreasonably withheld), effect
any settlement of any pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (A) includes an unconditional release of such indemnified party, in
form and substance reasonably satisfactory to such indemnified party, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.



          7. Contribution. If the indemnification provided for in Section 6 is unavailable or
insufficient to hold harmless an indemnified party under Section 6(a) or 6(b), then 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 Issuer from the offering and sale of the Notes, on the one hand, and a
Holder with respect to the sale by such Holder of Notes, Exchange Notes or Private Exchange Notes,
on the other, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Issuer on the one hand and such Holder on the
other with respect to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Issuer, 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 Notes (before deducting expenses) received by or on behalf of
the Issuer as set forth in the table on the cover of the Offering Memorandum, on the one hand, bear
to the total proceeds received by such Holder with respect to its sale of Notes, Exchange Notes or
Private Exchange Notes, on the other. The relative fault shall be determined by reference to,
among other things, whether the untrue or









 



-17-



alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to the Issuer or information supplied by the Issuer, on the one hand, or to
any Holders’ Information supplied by such Holder, on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be 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 7 shall be deemed to
include, for purposes of this Section 7, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an indemnifying party that is a
Holder of Notes, Exchange Notes or Private Exchange Notes shall not be required to contribute any
amount in excess of the amount by which the total price at which the Notes, Exchange Notes or
Private Exchange Notes sold by such indemnifying party to any purchaser exceeds the amount of any
damages which such indemnifying party has otherwise paid or become liable to pay by reason of any
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.



          8. Rules 144 and 144A. The Issuer shall use its commercially reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Issuer is not required to file such reports, it will, upon
the written request of any Holder of Transfer Restricted Notes, make publicly available other
information for so long as necessary to permit sales of such Holder’s securities pursuant to Rules
144 and 144A. The Issuer covenants that it will take such further action as any Holder of Transfer
Restricted Notes may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Notes without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer Restricted
Notes, the Issuer shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 8 shall be deemed
to require the Issuer to register any of its securities pursuant to the Exchange Act.



          9. Underwritten Registrations. If any of the Transfer Restricted Notes covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of such Transfer Restricted Notes included
in such offering, subject to the consent of the Issuer









 



-18-


(which shall not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.



          No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted Notes on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements.



          10. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuer has obtained the written consent of
Holders of a majority in aggregate principal amount of the Notes, the Exchange Notes and the
Private Exchange Notes, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Notes, Exchange Notes or Private Exchange Notes are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of a majority in aggregate principal amount of the Notes, the
Exchange Notes and the Private Exchange Notes being sold by such Holders pursuant to such
Registration Statement.



          (b) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telecopier or air courier guaranteeing
next-day delivery:




     (i) if to a Holder, at the most current address given by such Holder to the Issuer in
accordance with the provisions of this Section 10(b), which address initially is, with
respect to each Holder, the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to the Representative.




     (ii) if to the Initial Purchasers, to them c/o the Representative at its address set
forth in the Purchase Agreement; and




     (iii) if to the Issuer, initially at the address of the Issuer set forth in the
Purchase Agreement.



          All such notices and communications shall be deemed to have been duly given: when delivered
by hand, if personally delivered; one business day after being delivered to a next-day air courier;
five business days after being deposited in the mail; and when receipt is acknowledged by the
recipient’s telecopier machine, if sent by telecopier.









 



-19-


          (c) Successors and Assigns. This Agreement shall be binding upon the Issuer and its
successors and assigns.



          (d) Counterparts. This Agreement may be executed in any number of counterparts (which
may be delivered in original form or by telecopier) 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.



          (e) Definition of Terms. For purposes of this Agreement, (a) the term “business
day” means any day on which the New York Stock Exchange, Inc. is open for trading, (b) the term
“subsidiary” has the meaning set forth in Rule 405 under the Securities Act and (c) except
where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule
405 under the Securities Act.



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



          (g) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to conflicts of law provisions thereof to the
extent the application of the laws of another jurisdiction would be required thereby.



          (h) Remedies. In the event of a breach by the Issuer or by any Holder of any of their
obligations under this Agreement, each Holder or the Issuer, as the case may be, in addition to
being entitled to exercise all rights granted by law, including recovery of damages (other than the
recovery of damages for a breach by the Issuer of its obligations under Sections 1 or 2 hereof for
which liquidated damages have been paid pursuant to Section 3 hereof), will be entitled to specific
performance of its rights under this Agreement. The Issuer and each Holder agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that a remedy at law
would be adequate.



          (i) No Inconsistent Agreements. The Issuer represents, warrants and agrees that (i)
it has not entered into, and shall not, on or after the date of this Agreement, enter into, any
agreement that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously entered into any
agreement which remains in effect granting any registration rights with respect to any of its debt
securities to any person and (iii) without limiting the generality of the foregoing, without the
written consent of the Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Notes, it shall not grant to any person the right to request the Issuer to
register any of its debt securities under the Securities Act unless the rights so granted are not
in conflict or inconsistent with the provisions of this Agreement.









 



-20-


          (j) No Piggyback on Registrations. Neither the Issuer nor any of its security holders
(other than the Holders of Transfer Restricted Notes in such capacity) shall have the right to
include any securities of the Issuer in any Shelf Registration or Registered Exchange Offer other
than Transfer Restricted Notes.



          (k) Severability. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.



[Remainder of page intentionally left blank]










 



-21-




          Please confirm that the foregoing correctly sets forth the agreement between the Issuer and
the Initial Purchasers.



	 	 	 	 	 
	 	Very truly yours,





ACTIVANT SOLUTIONS HOLDINGS INC.

 	 
	 	By:  	/s/ Greg Petersen	 
	 	 	Name:  	Greg Petersen 	 
	 	 	Title:  	Senior Vice President and Chief

Financial Officer 	 









 



-22-

	 	 	 	 	 




[Exchange & Registration Rights Agreement]




Accepted by:




DEUTSCHE BANK SECURITIES INC.






for itself and on behalf of the several

Initial Purchasers listed on Schedule I hereto



	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Thomas Prior	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Vikrant Sawhney	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 












 



 


SCHEDULE I




	 	 	 	 	 
	 	 	Aggregate Principal Interest	 
	Initial Purchaser	 	of Notes to be Purchased	 
	Deutsche Bank Securities Inc.
	 	$	20,000,000	 
	J.P. Morgan Securities Inc.
	 	$	20,000,000	 
	 
	 	 	 
	 
	Total
	 	$	40,000,000	 
	 
	 	 	 













 



 




ANNEX A




          Each broker-dealer that receives Exchange Notes for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Issuer has agreed that, for a period of
90 days after the Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”









 



 


ANNEX B




          Each broker-dealer that receives Exchange Notes for its own account in exchange for Notes,
where such Notes were acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Notes. See “Plan of Distribution.”










 



 




ANNEX C




PLAN OF DISTRIBUTION




          Each broker-dealer that receives Exchange Notes for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer in connection with resales of Exchange Notes received in exchange for
Notes where such Notes were acquired as a result of market-making activities or other trading
activities. The Issuer has agreed that, for a period of 90 days after the Expiration Date, it will
make this prospectus, as amended or supplemented, available to any broker-dealer for use in
connection with any such resale. In addition, until [DATE], all dealers effecting transactions in
the Exchange Notes may be required to deliver a prospectus.



          The Issuer will not receive any proceeds from any sale of Exchange Notes by broker-dealers.
Exchange Notes received by broker-dealers for their own account pursuant to the Registered Exchange
Offer may be sold from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Notes or a combination of
such methods of resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an “underwriter” within the meaning of the
Securities Act and any profit on any such resale of Exchange Notes and any commission or
concessions received by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.



          For a period of 90 days after the Expiration Date the Issuer will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer
that requests such documents in the Letter of Transmittal. The Issuer has agreed to pay all
expenses incident to the Registered Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any broker-dealers and will
indemnify the Holders of the Notes (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.









 



 


ANNEX D





CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.



	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Address:
	 	 

	 	 
	 

	 	 	 	 

	 	 






If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of Exchange Notes. If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making activities or other trading activities, it acknowledges that
it will deliver a prospectus in connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it
is an “underwriter” within the meaning of the Securities Act.