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Exhibit 4.3
EXECUTION COPY
$250,000,000
GTECH HOLDINGS CORPORATION
4.750% SENIOR NOTES DUE OCTOBER 15, 2010
REGISTRATION RIGHTS AGREEMENT
New York, New York
October 9, 2003
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
As Representatives of the Several Initial Purchasers,
c/o Citigroup Global Markets Inc.,
388 Greenwich Street
New York, N.Y. 10013
Ladies and Gentlemen:
GTECH Holdings Corporation, a corporation organized under the laws of
the State of Delaware (the "Company"), proposes to issue and sell to certain
purchasers (the "Initial Purchasers") its 4.750% Senior Notes due 2010 (the
"Securities"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement") relating to the initial placement of the
Securities (the "Initial Placement"). The obligations of the Company under the
Securities and the Indenture will be fully and unconditionally guaranteed (the
"Guarantees") on an unsecured, unsubordinated basis by GTECH Corporation, a
Delaware corporation, GTECH Rhode Island Corporation, a Rhode Island
corporation, GTECH Latin America Corporation, a Delaware corporation, and
Interlott Technologies, Inc., a Delaware corporation, as guarantors (each, a
"Guarantor" and collectively, the "Guarantors"), pursuant to the terms of the
Indenture (as defined herein). To induce the Initial Purchasers to enter into
the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company and the Guarantors agree with you for your benefit and
the benefit of the holders from time to time of the Securities (including the
Initial Purchasers) (each a "Holder" and, together, the "Holders"), as follows:
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1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Additional Interest" has the meaning set forth in Section 4(a)
hereof.
"Affiliate" of any specified person shall mean any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Final Offering Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
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"Indenture" shall mean the Indenture relating to the Securities, dated
as of October 15, 2003, among the Company, the Guarantors, and The Bank of New
York, as trustee.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Issue Date" shall have the meaning set forth in Section 2(a) hereof.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Securities" shall mean debt securities of the Company identical
in all material respects to the Securities (except that the interest rate
step-up provisions and the transfer restrictions shall be eliminated) and to be
issued under the Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Default" shall have the meaning set forth in Section 4
hereof.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Registrable Securities" shall mean (i) Securities other than those
that have been (A) registered under a Registration Statement and disposed of in
accordance therewith, (B) distributed to the public pursuant to Rule 144 under
the Act or any successor rule or regulation thereto that may be adopted by the
Commission or that are eligible for sale to the public pursuant
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to Rule 144(k) under the Act or any successor rule or regulation of the
Commission, but not Rule 144A and (ii) any New Securities resale of which by the
Holder thereof requires compliance with the prospectus delivery requirements of
the Act.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or New Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Suspension Period" shall have the meaning set forth in Section
3(b)(ii) hereof.
"Trustee" shall mean the trustee with respect to the Securities and
the New Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER.
(a) The Company and the Guarantors shall prepare and, not later than
60 days following the date of the original issuance of the Securities (the
"Issue Date"), shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company shall use its best efforts to cause the Exchange Offer Registration
Statement to become effective under the Act within 150 days of the Issue
Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Securities for
New Securities (assuming that such Holder is not an Affiliate of the
Company or the Guarantors, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements with any person to
participate in the distribution of the New Securities and is not prohibited
by any law or policy of the Commission from participating in the Registered
Exchange Offer) to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
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(c) In connection with the Registered Exchange Offer, the Company and
the Guarantors shall:
(i) 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;
(ii) keep the Registered Exchange Offer open for not less than
20 Business Days after the date notice thereof is mailed to the Holders
(or, in each case, longer if required by applicable law);
(iii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the Act to ensure that it is available for sales of New
Securities by Exchanging Dealers during the Exchange Offer Registration
Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating that
the Company and the Guarantors are conducting the Registered Exchange Offer
in reliance on the position of the Commission in EXXON CAPITAL HOLDINGS
CORPORATION (pub. avail. May 13, 1988) and MORGAN STANLEY AND CO., INC.
(pub. avail. June 5, 1991); and (B) including a representation that the
Company and the Guarantors have not entered into any arrangement or
understanding with any person to distribute the New Securities to be
received in the Registered Exchange Offer and that, to the best of the
Company's and the Guarantor's information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of the New
Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Guarantors shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 5(s) all Securities so accepted for exchange; and
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(iii) cause the Trustee promptly to authenticate and deliver to
each Holder of Securities a principal amount of New Securities equal to the
principal amount of the Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission in MORGAN STANLEY AND CO., INC. (pub. avail. June 5, 1991) and
EXXON CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction, which must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
under the Act if the resales are of New Securities obtained by such Holder
in exchange for Securities acquired by such Holder directly from the
Company or one of its Affiliates. Accordingly, each Holder participating in
the Registered Exchange Offer shall be required to represent to the Company
and the Guarantors that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Securities or the
New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company or the
Guarantors.
3. SHELF REGISTRATION.
(a) If (i) due to any change in law or applicable interpretations
thereof by the Commission's staff, the Company and the Guarantors determine
upon the advice of the Company's outside counsel that they are not
permitted to effect the Registered Exchange Offer as contemplated by
Section 2 hereof; (ii) for any other reason the Registered Exchange Offer
is not consummated within 180 days of the Issue Date; or (iii) any Initial
Purchaser so requests with respect to Securities that are not eligible to
be exchanged for New Securities in the Registered Exchange Offer and that
are held by it following consummation of the Registered Exchange Offer, the
Company and the Guarantors shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b) (i) The Company and the Guarantors shall as promptly as
practicable (but in no event more than 45 days after so required or
requested pursuant to this Section 3) file with the Commission and
thereafter shall use its best efforts to cause to be declared effective
under the Act no later than 90 days after so required or requested a Shelf
Registration Statement relating to the offer and sale of the Securities by
the Holders thereof from time to time in accordance with the methods of
distribution elected by such
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Holders and set forth in such Shelf Registration Statement; PROVIDED,
HOWEVER, that no Holder (other than an Initial Purchaser) shall be entitled
to have the Securities 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.
(ii) The Company and the Guarantors shall use their best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date of issuance of the Securities (plus the number of days
in any Suspension Period) or such shorter period that will terminate when
all the Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf
Registration Period"); PROVIDED, HOWEVER, that the Company and the
Guarantors shall not be obligated to keep the Shelf Registration Statement
effective or to permit the use of any Prospectus forming a part of the
Shelf Registration Statement if (A) the Company and the Guarantors
determine, in their reasonable judgment, upon advice of counsel that the
continued effectiveness and use of the Shelf Registration Statement would
(x) require the disclosure of material information which the Company or the
Guarantors have a BONA FIDE business reason for preserving as confidential
or (y) interfere with any financing, acquisition, corporate reorganization
or other material transaction involving the Company or the Guarantors or
any of their subsidiaries; and PROVIDED, FURTHER, that the failure to keep
the Shelf Registration Statement effective and usable for offers and sales
of Registrable Securities for such reasons shall last no longer than an
aggregate of 45 calendar days in any three-month period or no more than an
aggregate of 90 calendar days during any twelve-month period (whereafter a
Registration Default, as hereinafter defined, shall occur) and (B) the
Company and the Guarantors promptly thereafter comply with the requirements
of Section 5(k) hereof. Any such period during which the Company and the
Guarantors are excused from keeping the Shelf Registration Statement
effective and usable for offers and sales of Registrable Securities is
referred to herein as a "Suspension Period." A Suspension Period shall
commence on and include the date that the Company or the Guarantors give
notice to the Holders that the Shelf Registration Statement is no longer
effective or the Prospectus included therein is no longer usable for offers
and sales of Registrable Securities as a result of the application of the
proviso in clause (A) above (without notice of the nature or details of
such events) and shall end on the earlier to occur of the date on which
each seller of Registrable Securities covered by the Shelf Registration
Statement receives copies of any supplemented or amended Prospectus or is
advised in writing by the Company and the Guarantors that use of the
Prospectus may be resumed. The Company and the Guarantors shall be deemed
not to have used their best efforts to keep the Shelf Registration
Statement effective during the requisite period if they voluntarily take
any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless
such action is permitted pursuant to this subsection or required by
applicable law.
(iii) The Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or
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supplement, (A) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission; and (B) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not misleading.
4. ADDITIONAL INTEREST. (a) In the event of the occurrence of any of
the following (each a "Registration Default"), the interest rate on the
Securities will be increased (the "Additional Interest") as described below:
(i) the Exchange Offer Registration Statement has not been
filed with the Commission on or prior to the 60th day after the Issue Date;
(ii) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the 150th day after the Issue
Date;
(iii) the Registered Exchange Offer has not been consummated on
or prior to the 180th day after the Issue Date;
(iv) any required Shelf Registration Statement with respect to
the Securities has not been filed or declared effective by the Commission
on or prior to the date by which best efforts are to be used to cause such
filing or effectiveness; or
(v) any required Exchange Offer Registration Statement or
Shelf Registration Statement is filed with, and declared effective by, the
Commission, but ceases to be effective at any time at which it is required
to be effective under this agreement, then
commencing on the day of the occurrence of a Registration Default, Additional
Interest (in addition to stated interest on the Securities) shall accrue on the
Securities at the rate of 0.25% per annum for the first 90 days immediately
following the occurrence of such Registration Default and such Additional
Interest rate shall increase by an additional 0.25% per annum at the end of such
90-day period, but in no event shall such rate exceed 0.50% per annum. Upon (1)
the filing of the Exchange Offer Registration Statement (in the case of a
Registration Default set forth in clause (i) above), (2) the effectiveness of
the Exchange Offer Registration Statement (in the case of a Registration Default
set forth in clause (ii) above), (3) the consummation of the Registered Exchange
Offer (in the case of a Registration Default set forth in clause (iii) above),
(4) the filing or effectiveness of the Shelf Registration Statement (in the case
of a Registration Default set forth in clause (iv) above, and (5) the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (in the case of a Registration Default set forth in
clause (v) above), Additional Interest on the Securities as a result of a
Registration Default shall cease to accrue. If, after any such Additional
Interest ceases to accrue, a subsequent Registration Default occurs, Additional
Interest will again accrue as described herein.
(b) The Company or the Guarantors shall notify the Trustee within two
Business Days of the occurrence of any Registration Default. Any amounts of
Additional
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Interest due as a result of a Registration Default will be payable in cash
semiannually in arrears on April 15 and October 15 of each year in
accordance with the terms set forth in the Indenture with respect to
payments of interest, commencing with the first such date occurring after
any Additional Interest begins to accrue. The Company or the Guarantors
shall notify the Trustee within two Business Days of the cessation of any
requirement to pay Additional Interest hereunder.
5. ADDITIONAL REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall not file any such
Registration Statement or amendment or supplement to which you shall
reasonably object;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in Annex C hereto in
the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as applicable,
in the Prospectus contained in the Exchange Offer Registration Statement;
and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any 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.
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(c) The Company and the Guarantors shall advise you, the Holders of
Securities covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided in
writing to the Company or the Guarantors a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the Prospectus until the Company or the Guarantors
shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date, 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 (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Company and the Guarantors shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for
sale in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantors shall furnish to each Holder of
Securities covered by any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities covered by 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. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of securities in connection with the offering and sale
of the securities covered by
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the Prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company and the Guarantors shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto,
including all material incorporated by reference therein, and, if the
Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Company or the Guarantors shall promptly deliver to each
Initial Purchaser, each Exchanging Dealer and each other person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
person may reasonably request. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto during the
Exchange Offer Registration Period by any Initial Purchaser, any Exchanging
Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the
offering and sale of the New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer
Registration Statement, except under the circumstances provided in
subsections(c)(ii) through (v) above.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company and the
Guarantors shall arrange, if necessary, for the qualification of the
Securities or the New Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request and will maintain such
qualification in effect so long as required; PROVIDED that in no event
shall the Company or the Guarantors be obligated to qualify to do business
in any jurisdiction where it is not then so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Company and the Guarantors shall cooperate with the Holders
of Securities to facilitate the timely preparation and delivery of
certificates representing New Securities or Securities to be issued or sold
pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantors shall promptly
prepare a post-effective amendment to the applicable Registration Statement
or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers of
the securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In such circumstances, the period of
effectiveness of the
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Exchange Offer Registration Statement provided for in Section 2 and the
Shelf Registration Statement provided for in Section 3(b) shall each be
extended by the number of days from and including the date of the giving of
a notice of suspension pursuant to Section 5(c) to and including the date
when the Initial Purchasers, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement,
the Company and the Guarantors shall provide a CUSIP number for the
Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates
for such Securities or New Securities, in a form eligible for deposit with
The Depository Trust Company.
(m) The Company and the Guarantors shall comply with all applicable
rules and regulations of the Commission and shall 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 Act.
(n) The Company and the Guarantors shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Holder and the
distribution of such securities as the Company or the Guarantors may from
time to time reasonably require for inclusion in such Registration
Statement. The Company and the Guarantors may exclude from such Shelf
Registration Statement the Securities of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall enter into such agreements (including, if requested,
an underwriting agreement in customary form) and take all other appropriate
actions in order to expedite or facilitate the registration or the
disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7 hereof.
(q) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall:
(i) make reasonably available for inspection by the Holders
of Securities to be registered thereunder, any underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such underwriter
all relevant financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors and its subsidiaries;
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(ii) cause the Company's and the Guarantor's officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as is customary
for similar due diligence examinations; PROVIDED, HOWEVER, that any
information that is designated in writing by the Company or the Guarantors,
in good faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders
of Securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or the Guarantors or of any
business acquired by the Company or the Guarantors for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing Underwriters,
if any, including those to evidence compliance with Section 5(k) and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this subsection
5(q) shall be performed at (A) the effectiveness of such Registration Statement
and each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company and the Guarantors shall, to the extent requested by any Initial
Purchaser, or by a broker-
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dealer that holds Securities that were acquired as a result of
market-making or other trading activities:
(i) make reasonably available for inspection by such
requesting party, and any attorney, accountant or other agent retained by
such Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors and
their subsidiaries;
(ii) cause the Company's and the Guarantor's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by such Initial Purchaser or any such
attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations; PROVIDED,
HOWEVER, that any information that is designated in writing by the Company
or the Guarantors, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by such Initial Purchaser or
any such attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality;
(iii) make such representations and warranties to such
requesting party, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to such requesting party
and its counsel, addressed to such requesting party, covering such matters
as are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such requesting
party or its counsel;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or the Guarantors or of any
business acquired by the Company or the Guarantors for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to such requesting party, in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings, or if requested
by such Initial Purchaser or its counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under Statement on Auditing
Standards No. 35, covering matters reasonably requested by such Initial
Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel, including
those to evidence compliance with Section 5(k) and with conditions
customarily contained in underwriting agreements.
14
<Page>
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
subsection 5(r) shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
person as directed by the Company) in exchange for the New Securities, the
Company shall mark, or caused to be marked, on the Securities so exchanged
that such Securities are being canceled in exchange for the New Securities.
In no event shall the Securities be marked as paid or otherwise satisfied.
(t) The Company and the Guarantors will use their best efforts (i) if
the Securities have been rated prior to the initial sale of such
Securities, to confirm such ratings will apply to the Securities or the New
Securities, as the case may be, covered by a Registration Statement; or
(ii) if the Securities were not previously rated, to cause the Securities
covered by a Registration Statement to be rated by at least one nationally
recognized statistical rating agency, if so requested by the Majority
Holders with respect to the related Registration Statement or by any
Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such Broker-Dealer in complying with
the requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 7
hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the requirements
of such Rules.
(v) The Company and the Guarantors shall take all other steps
reasonably necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
6. REGISTRATION EXPENSES. The Company and the Guarantors shall bear
all expenses incurred in connection with the performance of their respective
obligations under Sections 2, 3 and 5 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel (which shall
15
<Page>
initially be Shearman & Sterling LLP but which may be another nationally
recognized law firm experienced in securities matters designated by the Majority
Holders) to act as counsel for the Holders in connection therewith. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Securities pursuant to the
Shelf Registration Statement.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Holder of Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 5(h) hereof, each Exchanging
Dealer), the directors, officers, employees and agents of each such Holder and
each person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company and the Guarantors will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company or the Guarantors by or on behalf of any such Holder
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company or the Guarantors may otherwise have.
The Company and the Guarantors also agree to indemnify or contribute
as provided in Section 7(d) to Losses of each underwriter, if any, of Securities
or New Securities, as the case may be, registered under a Shelf Registration
Statement, their directors, officers, employees or agents and each person who
controls such underwriter on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 7(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 5(p)
hereof.
(b) Each Holder of Securities or New Securities covered by a
Registration Statement (including each Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 5(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless the
Company, the Guarantors, each of their directors and each of their officers
who signs such Registration Statement and each person who controls the
Company or the Guarantors within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Guarantors to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company or the
Guarantors and the by or on behalf of such
16
<Page>
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 or notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood, however, that the Company or
the Guarantors shall not, in connection with any one such suit or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties, which shall be designated in writing by the
Initial Purchasers. An indemnifying party will not, without the prior
written consent of the indemnified parties, 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 (i) includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding and (ii) does not include a statement as
to or an admission of fault, culpability or failure to act by or on behalf
of any indemnified party. The indemnifying party shall not be liable for
any settlement of any
17
<Page>
proceeding effected without its written consent, but if settled with such
consent the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
PROVIDED, HOWEVER, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company and the Guarantors shall be deemed to be equal to the total net
proceeds from the Initial Placement received by the Company (before deducting
expenses). Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions received by the Initial
Purchasers in connection with the Initial Placement, and benefits received by
any other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to, among other things,
whether any alleged untrue statement or omission relates to information provided
by the indemnifying party, on the one hand, or by the indemnified party, on the
other hand, 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 agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
and the Guarantors within the meaning of either the Act or the Exchange Act,
each officer of the Company and the Guarantors who shall have signed
18
<Page>
the Registration Statement and each director of the Company and the Guarantors
shall have the same rights to contribution as the Company or the Guarantors,
subject in each case to the applicable terms and conditions of this paragraph
(d).
(e) The provisions of this Section 7 will remain in full force and
effect, regardless of any termination or cancellation of this agreement or
any investigation made by or on behalf of any Holder or the Company or the
Guarantors or any of the officers, directors or controlling persons
referred to in this Section hereof, and will survive the sale by a Holder
of securities covered by a Registration Statement.
8. UNDERWRITTEN REGISTRATIONS. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders; PROVIDED, that such Managing Underwriters
shall be reasonably satisfactory to the Company.
(b) No person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such person (i) agrees to sell
such person's Securities or New Securities, as the case may be, 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.
9. NO INCONSISTENT AGREEMENTS. The Company and the Guarantors have
not, as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to their respective securities
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
10. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company and
the Guarantors have obtained the written consent of the Holders of a majority of
the aggregate principal amount of the Registrable Securities outstanding;
PROVIDED that, with respect to any matter that directly or indirectly affects
the rights of any Initial Purchaser hereunder, the Company and the Guarantors
shall obtain the written consent of each such Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective;
PROVIDED, FURTHER, that no amendment, qualification, supplement, waiver or
consent with respect to Section 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder;
and PROVIDED, FURTHER, that the provisions of this Section 10 may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company and
the Guarantors have obtained the written consent of the Initial Purchasers and
each Holder. Notwithstanding the foregoing (except the foregoing provisos), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or New
Securities, as the case may be, 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 the Majority Holders, determined on the basis of
19
<Page>
Securities or New Securities, as the case may be, being sold rather than
registered under such Registration Statement.
11. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar (as defined in the Indenture) under the
Indenture, with a copy in like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at its respective
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company or the Guarantors by notice to
the other parties may designate additional or different addresses for subsequent
notices or communications.
12. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company or the
Guarantors thereto, subsequent Holders of Securities and the New Securities. The
Company and the Guarantors hereby agree to extend the benefits of this Agreement
to any Holder of Securities and the New Securities, and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
13. SPECIFIC PERFORMANCE. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company and the Guarantors
acknowledge that any failure by the Company or the Guarantors to comply with its
obligations under Sections 2 and 3 hereof may result in material irreparable
injury to the Initial Purchasers 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 Purchasers or
any Holder may obtain such relief as may be required to specifically enforce
either the Company or Guarantors' obligations under Sections 2 and 3 hereof.
14. COUNTERPARTS. This agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one and
the same agreement.
15. HEADINGS. The headings used herein are for convenience only and
shall not affect the construction hereof.
20
<Page>
16. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
17. SEVERABILITY. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
18. SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or the Guarantors or their Affiliates (other
than subsequent Holders of Securities or New Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
[SIGNATURE PAGES FOLLOW]
21
<Page>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
GTECH HOLDINGS CORPORATION
By:
------------------------
Name:
Title:
GTECH CORPORATION
By
------------------------
Name:
Title:
GTECH RHODE ISLAND CORPORATION
By
------------------------
Name:
Title:
GTECH LATIN AMERICA CORPORATION
By
------------------------
Name:
Title:
INTERLOTT TECHNOLOGIES, INC.
By
------------------------
Name:
Title:
<Page>
The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Acting on behalf of themselves and as the
Representatives of the several Initial
Purchasers.
By: CITIGROUP GLOBAL MARKETS INC.
By:
------------------------
Name:
Title:
<Page>
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. 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 New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company and the Guarantors have
agreed that, starting on the date the Registered Exchange Offer is consummated
(the "Expiration Date") and ending on the close of business 180 days after the
Expiration Date, subject to certain exceptions, it will make this Prospectus
available to any Broker-Dealer for use in connection with any such resale. See
"Plan of Distribution."
A-1
<Page>
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities 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 New Securities. See "Plan of Distribution."
B-1
<Page>
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. 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 New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. We have agreed that,
starting on the Expiration Date and ending on the close of business 180 days
after the Expiration Date, we will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale.
We will not receive any proceeds from any sale of New Securities by
Broker-Dealers. New Securities received by Broker-Dealers for their own account
pursuant to the 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 New Securities 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 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 and/or the purchasers of any such New Securities. Any
Broker-Dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions 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 180 days after the Expiration Date, we 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. We have agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holder of the Securities) other
than commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
<Page>
ANNEX D
RIDER A
/ / 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:
---------------------------
---------------------------
RIDER B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; 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.
D-1