EXHIBIT 4.4
EXECUTION VERSION
$200,000,000 12½% Second Lien Senior
Secured Notes due 2014
REGISTRATION RIGHTS AGREEMENT
by and among
Momentive Performance Materials Inc.
the subsidiaries of Momentive Performance Materials Inc. party
hereto
and
J.P. Morgan Securities Inc.
J.P. Morgan Securities Ltd.
UBS Securities LLC
UBS Limited
Dated as of June 15,
2009
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “ Agreement
”) is made and entered into as of June 15, 2009, by and among
Momentive Performance Materials Inc., a Delaware corporation (the
“ Company ”), the
subsidiaries of the Company listed on Schedule A hereto
(collectively, the “ Guarantors ”), J.P.
Morgan Securities Inc. (“ JPMSI ”), J.P. Morgan
Securities Ltd. (“ JPMSL ”), UBS Securities LLC
(“ UBSSL ”) and UBS Limited (together with
JPMSI, JPMSL and UBSSL, the “ Dealer Managers
”). The Dealer Managers have agreed to act in such capacity
in connection with the offers to exchange (the “ Private
Exchange Offers ”) the Company’s new 12½%
Second Lien Senior Secured Notes due 2014 (the “ Initial
Notes ”) issued by the Company and fully and
unconditionally guaranteed by the Guarantors (the “
Guarantees ”) for the outstanding notes listed in the
table shown on Schedule B hereto (collectively, the “ Old
Notes ”). The Initial Notes and the Guarantees thereof
are herein collectively referred to as the “ Initial
Securities ”.
This Agreement
is made pursuant to the Dealer Manager Agreement, dated May 12,
2009 (the “ Dealer Manager Agreement
”), among the Company, the Guarantors and the Dealer Managers
(i) for the benefit of the Dealer Managers and (ii) for the benefit
of the holders from time to time of the Initial Securities. In
order to induce the holders of Old Notes to participate in the
Private Exchange Offers, the Company and the Guarantors have agreed
to provide the registration rights set forth in this Agreement.
The parties
hereby agree as follows:
S ECTION 1. Definitions. As used in
this Agreement, the following capitalized terms shall have the
following meanings:
Additional
Interest: Any additional interest payable with respect to the
Transfer Restricted Securities due to an increase in interest rate
pursuant to Section 5 hereof.
Advice:
As defined in Section 6 hereof.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Business
Day: Any day other than a Saturday, Sunday or U.S. federal
holiday or a day on which banking institutions or trust companies
located in New York, New York are authorized or obligated to be
closed.
Closing
Date: The date of this Agreement.
Commission:
The Securities and Exchange Commission.
Company:
As defined in the preamble hereto.
Consummate: A registered Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the Securities
Act of the Exchange Offer Registration Statement relating to the
Exchange Securities
to be issued in the Exchange Offer, (ii)
the maintenance of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period
not less than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Company to the registrar
under the Indenture of Exchange Securities in the same aggregate
principal amount as the aggregate principal amount of Initial
Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.
Dealer
Managers: As defined in the preamble hereto.
Dealer
Manager Agreement: As defined in the preamble hereto.
Delay
Period: As defined in Section 6 hereof.
DTC: The
Depository Trust Company.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Exchange
Date: As defined in Section 3(a) hereof.
Exchange
Offer: The registration by the Company under the Securities Act
of the Exchange Securities pursuant to a Registration Statement
pursuant to which the Company offers the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for
Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange
Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related
Prospectus.
Exchange
Securities: The 12½% Second Lien Senior Secured Notes
due 2014 of the same series under the Indenture as the Initial
Notes and the Guarantees thereof, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this
Agreement.
FINRA:
Financial Industry Regulatory Authority.
Free Writing
Prospectus: Any free writing prospectus, as such term is
defined in Rule 405 under the Securities Act, relating to any
portion of the Securities.
Freely
Tradable: Means, with respect to an Initial Security, an
Initial Security that at any time of determination (i) may be sold
to the public in accordance with Rule 144 under the Securities Act
or any successor provision thereof (“ Rule 144
”) by a person that is not (and has not been for the three
months preceding such time of determination) an
“affiliate” (as defined in Rule 144) of the Company
where no conditions of Rule 144 are then applicable (other than the
holding period requirement in paragraph (d)(1)(ii) of Rule 144 so
long as such holding period requirement is satisfied at such time
of determination)), and (ii) does not bear any restrictive legends
relating to the Securities Act.
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Guarantees:
As defined in the preamble hereto.
Guarantors: As defined in the preamble hereto.
Holder:
A person deemed to be a holder of Transfer Restricted Securities
pursuant to Section 2(b) hereof.
Indemnified
Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture dated as of June 15, 2009, by and
among the Company, the Guarantors and The Bank of New York Mellon
Trust Company, N.A., as trustee (the “ Trustee
”) and collateral trustee, pursuant to which the Initial
Securities and the Exchange Securities are to be issued, as such
Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial
Notes: As defined in the preamble hereto.
Initial
Securities: As defined in the preamble hereto.
Interest
Payment Date: Means any date on which interest on the
Securities is payable pursuant to the Indenture.
JPMSI:
As defined in the preamble hereto.
Old
Notes: As defined in the preamble hereto.
Person:
An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
Private
Exchange Offers: As defined in the preamble hereto.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement
and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such
Prospectus.
Registration
Default: As defined in Section 5 hereof.
Registration
Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Securities pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is
filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: The Exchange Securities and/or any Initial
Securities registered pursuant to a Shelf Registration
Statement.
Securities
Act: The Securities Act of 1933, as amended.
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Shelf Filing
Deadline: As defined in Section 4(a) hereof.
Shelf
Registration Statement: As defined in Section 4(a) hereof.
Transfer
Restricted Securities: Each Initial Security; provided
that an Initial Security shall cease to be a Transfer Restricted
Security on the earliest to occur of (i) the date on which such
Initial Security is exchanged in the Exchange Offer for an Exchange
Security entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the
Securities Act, (ii) the date on which the Shelf Registration
Statement with respect to such Initial Security has become
effective under the Securities Act and the Initial Security has
been disposed of pursuant to such Shelf Registration Statement,
(iii) the date on which such Initial Security ceases to be
outstanding, (iv) the date on which such Initial Security is
distributed by a Broker-Dealer pursuant to the “Plan of
Distribution” contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein)
or (v) the date on which such Initial Security is Freely
Tradable.
Trust
Indenture Act: The Trust Indenture Act of 1939, as amended.
Trustee:
As defined in the definition of Indenture above.
Underwritten
Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for
reoffering to the public.
S ECTION 2. Securities Subject to this
Agreement.
(a) Transfer
Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders
of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities whenever such Person owns
Transfer Restricted Securities, provided that, in relation
to Transfer Restricted Securities held in global note form by DTC,
a Person is deemed to be a holder of Transfer Restricted Securities
whenever DTC holds Transfer Restricted Securities for such Person,
and DTC shall be deemed, for purposes of this Agreement, not to
hold such Transfer Restricted Securities.
S ECTION 3. Registered Exchange
Offer.
(a)
Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section
6(a) hereof have been complied with), each of the Company and the
Guarantors shall (i) use its commercially reasonable efforts to
cause a Registration Statement to be filed under the Securities Act
relating to the Exchange Securities and the Exchange Offer to
become effective not later than the 366 th day following
the Closing Date (or if such 366 th day is not a
Business Day, the next succeeding Business Day) (the “
Exchange
Date ”) and (ii) in connection with the foregoing,
(A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B)
file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection
with the registration
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and qualification of the Exchange
Securities to be made under the state securities or blue sky laws
of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iii) upon the effectiveness of such
Exchange Offer Registration Statement, commence the Exchange Offer;
provided ,
however , that the Company and the Guarantors shall not be
required to take any of the aforementioned actions if there are no
Transfer Restricted Securities outstanding (other than Transfer
Restricted Securities held, or beneficially held, by affiliates of
the Company) on the Exchange Date. The Exchange Offer, if required
pursuant to this Section 3(a), shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in
exchange for the Transfer Restricted Securities and to permit
resales of Exchange Securities held by Broker-Dealers as
contemplated by Section 3(c) hereof.
(b) If an
Exchange Offer Registration Statement is required to be filed and
declared effective pursuant to Section 3(a) above, the Company and
the Guarantors shall use commercially reasonable efforts to cause
the Exchange Offer Registration Statement to be effective
continuously and to keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal
and state securities laws to Consummate the Exchange Offer;
provided, however , that in no event shall such period be
less than 30 days after the date notice of the Exchange Offer is
mailed to the Holders. The Company shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. No
securities other than the Exchange Securities shall be included in
the Exchange Offer Registration Statement. The Company shall use
its commercially reasonable efforts to cause the Exchange Offer to
be Consummated on or before the Exchange Date.
(c) The Company
shall indicate in a “Plan of Distribution” section
contained in the Prospectus forming a part of any Exchange Offer
Registration Statement that any Broker-Dealer who holds Initial
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company) may
exchange such Initial Securities pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an
“underwriter” within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements
of the Securities Act in connection with any resales of the
Exchange Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement. Such “Plan of
Distribution” section, if any, shall also contain all other
information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant
thereto, but such “Plan of Distribution” shall not name
any such Broker-Dealer or disclose the amount of Initial Securities
held by any such Broker-Dealer except to the extent required by the
Commission.
If an Exchange
Offer Registration Statement is required to be filed and declared
effective pursuant to Section 3(a) above, each of the Company and
the Guarantors shall use its commercially reasonable efforts to
keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions
of Section 6(c) hereof to the extent necessary to ensure that it is
available for resales of Initial Securities acquired by
Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as
announced from time to time, for a
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period ending on the earlier of (i) 180
days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
The Company
shall provide sufficient copies of the latest version of any such
Prospectus to Broker-Dealers promptly upon request at any time
during such 180-day (or shorter as provided in the foregoing
sentence) period in order to facilitate such resales.
S ECTION 4. Shelf Registration.
(a) Shelf
Registration. If (i)
the Company is not required to file an Exchange Offer Registration
Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy
(after the procedures set forth in Section 6(a) hereof have been
complied with), (ii) for any reason the Exchange Offer is not
Consummated by the Exchange Date and at such time there are any
Transfer Restricted Securities outstanding (other than Transfer
Restricted Securities held, or beneficially held, by affiliates of
the Company), or (iii) with respect to any Holder of Transfer
Restricted Securities (other than (1) a Holder that is an affiliate
of the Company or (2) a Holder of Transfer Restricted Securities
which Transfer Restricted Securities are beneficially held by an
affiliate of the Company; provided that this clause (2) shall only apply
to such Holder to the extent of such Transfer Restricted Securities
that are beneficially held by an affiliate of the Company) (A) such
Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) such Holder may not
resell the Exchange Securities acquired by it in the Exchange Offer
to the public without delivering a prospectus (other than by reason
of such Holder’s status as an affiliate of the Company) and
the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such
Holder, or (C) such Holder is a Broker-Dealer and holds Initial
Securities acquired directly from the Company or one of its
affiliates, then, upon such Holder’s request prior to the
Exchange Date, the Company and the Guarantors shall:
(x) cause to be
filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the “ Shelf
Registration Statement ”) as soon as practicable but in
any event on or prior to 180 days after such filing obligation
arises (or if such 180th day is not a Business Day, the next
succeeding Business Day) (such date being the “ Shelf
Filing Deadline ”), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the
Holders of which shall have provided the information required
pursuant to Section 4(b) hereof; and
(y) use their
commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective by the Commission as promptly as
possible (unless it becomes effective automatically upon filing),
and in any event on or before the 365th day after the obligation to
file such Shelf Registration Statement arises (or if such 365
th day
is not a Business Day, the next succeeding Business Day).
Each of the
Company and the Guarantors shall use its commercially reasonable
efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as
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required by the provisions of Sections
6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Initial Securities by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period of at least one year following the effective date of such
Shelf Registration Statement (or shorter period that will terminate
when all the Initial Securities covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration
Statement); provided that the Company may for a period of up
to 60 days in any three-month period, not to exceed 90 days in the
aggregate in any calendar year, determine in good faith that the
Shelf Registration Statement is not usable under certain
circumstances relating to corporate developments, public filings
with the Commission and similar events (and not for the purpose of
avoidance of its obligations hereunder), and suspend the use of the
Prospectus that is part of such Shelf Registration Statement.
Notwithstanding anything to the contrary in this Agreement, the
requirements to file the Shelf Registration Statement and to have
the Shelf Registration Statement become effective and remain
effective shall terminate at such time as all of the Initial
Securities (other than any Initial Securities held, or beneficially
held, by affiliates of the Company) covered by such Shelf
Registration Statement are Freely Tradable.
(b)
Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request
for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein or amendment
or supplement thereto or Free Writing Prospectus. Each Holder as to
which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading.
S ECTION 5. Additional Interest. If
there are any Transfer Restricted Securities outstanding on the
Exchange Date (other than Transfer Restricted Securities held, or
beneficially held, by affiliates of the Company) and either (i) any
of the Registration Statements required by this Agreement has not
been declared effective by the Commission (or become automatically
effective) on or prior to the date specified for such effectiveness
in this Agreement (the “ Effectiveness Target Date
”), (ii) the Exchange Offer has not been Consummated within
30 Business Days after the Effectiveness Target Date with respect
to the Exchange Offer Registration Statement or (iii) any
Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or
fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately
declared or automatically becomes effective (except in the case of
a Registration Statement that ceases to be effective or usable as
specifically permitted by the last paragraph of Section 6 hereof)
(each such event referred to in clauses (i) through (iii), a
“ Registration Default ”), the Company hereby agrees
that the interest rate borne by the Transfer Restricted Securities
shall be increased by 0.25% per annum during the 90-day period
immediately following the occurrence of any Registration Default
and shall increase by 0.25% per annum at the end of each subsequent
90-day period, but in no event shall such increase exceed 1.00% per
annum. Following the earliest
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of (x) the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities
and (y) the date on which any particular Transfer Restricted
Security ceases to be a Transfer Restricted Security, the interest
rate borne by the relevant Transfer Restricted Securities will be
reduced to the original interest rate borne by such Transfer
Restricted Securities; provided, however, that
if, after any such reduction in interest rate, a different
Registration Default occurs, the interest rate borne by the
relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions.
Notwithstanding
the foregoing, (i) the amount of Additional Interest payable shall
not increase because more than one Registration Default has
occurred and is pending and (ii) a Holder of Transfer Restricted
Securities that is not entitled to the benefits of the Shelf
Registration Statement (because, e.g. , such Holder has not
elected to include information or has not timely delivered such
information to the Company pursuant to Section 4(b) hereof) shall
not be entitled to Additional Interest with respect to a
Registration Default that pertains to the Shelf Registration
Statement.
All obligations
of the Company and the Guarantors set forth in the first paragraph
of this Section 5 that are outstanding with respect to any Initial
Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such
outstanding obligations with respect to such security shall have
been satisfied in full.
If the Company
is required to pay Additional Interest, the Company shall provide
written notice to the Trustee of the Company’s obligation to
pay Additional Interest no later that 15 days prior to each
Interest Payment Date on which Additional Interest is payable,
which notice shall set forth the amount of the Additional Interest
to be paid by the Company on such Interest Payment Date.
S ECTION 6. Registration
Procedures.
(a) Exchange
Offer Registration Statement. In connection with the Exchange
Offer, if required pursuant to Section 3(a) hereof, the Company and
the Guarantors shall comply with all of the provisions of Section
6(c) hereof, shall use their commercially reasonable efforts to
effect such exchange to permit the sale of the Exchange Securities
being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following
provisions:
(i) If in the
reasonable opinion of counsel to the Company there is a question as
to whether the Exchange Offer is permitted by applicable law, each
of the Company and the Guarantors hereby agrees to seek a favorable
decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Initial
Securities. Each of the Company and the Guarantors hereby agrees to
pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. Each of the Company
and the Guarantors hereby agrees, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the
Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such
8
counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a favorable resolution by the Commission staff of
such submission.
(ii) As a
condition to its participation in the Exchange Offer pursuant to
the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to
the Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that
(A) it is not an affiliate of the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of
the Exchange Securities to be issued in the Exchange Offer and (C)
it is acquiring the Exchange Securities in its ordinary course of
business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company’s
preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely
on the position of the Commission enunciated in Morgan Stanley
and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission’s letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (which
may include any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should 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 if
the resales are of Exchange Securities obtained by such Holder in
exchange for Initial Securities acquired by such Holder directly
from the Company.
(b) Shelf
Registration Statement. In connection with the Shelf
Registration Statement, if required pursuant to Section 4(a)
hereof, each of the Company and the Guarantors shall comply with
all the provisions of Section 6(c) hereof and shall use its
commercially reasonable efforts to effect such registration (unless
automatically declared effective) to permit the sale of the
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto each of the Company and the Guarantors will as
expeditiously as is commercially reasonable prepare and file with
the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof.
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(c) General
Provisions. In
connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer
Restricted Securities or Exchange Securities and any Free Writing
Prospectus (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of
Initial Securities by Broker-Dealers and any Free Writing
Prospectus related thereto), each of the Company and the Guarantors
shall:
(i) use its
commercially reasonable efforts to keep such Registration Statement
continuously effective during the period required by this Agreement
and provide all requisite financial statements (including, if
required by the Securities Act or any regulation thereunder,
financial statements of the Guarantors for the period specified in
Section 3 or 4 hereof, as applicable); upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement
or omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment
to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its commercially reasonable efforts
to cause such amendment to be declared effective (unless
automatically declared effective) and such Registration Statement
and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and
file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under
the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of
all s
