Exhibit 4.6
EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT
by and among
Duane Reade Acquisition
Corp.
and
Banc of America Securities
LLC
Citigroup Global Markets Inc.
Credit Suisse First Boston
LLC
UBS Securities LLC
Dated as of July 30, 2004
REGISTRATION RIGHTS
AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of July
30, 2004, by and among Duane Reade Acquisition Corp., a Delaware
corporation (which will be merged with and into Duane Reade Inc., a
Delaware corporation (“Duane Reade”), upon consummation
of the Acquisition (as defined herein) with Duane Reade as the
survivor) (the “Company”), and Banc of America
Securities LLC, Citigroup Global Markets Inc., Credit Suisse First
Boston LLC, and UBS Securities LLC (collectively, the
“Initial Purchasers”), each of whom has agreed to
purchase the Company’s 9.75% Senior Subordinated Notes due
2011 (the “Initial Securities”).
This Agreement is made pursuant to
the (i) Purchase Agreement, dated July 23, 2004, by and among the
Initial Purchasers and the Company, and the (ii) Purchase
Agreement, dated July 23, 2004, by and between Banc of America
Securities LLC and the Company ((i) and (ii) together, the
“Purchase Agreement”) (a) for the benefit of the
Initial Purchasers and (b) for the benefit of the holders from time
to time of the Initial Securities, including the Initial
Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Securities, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 5(h) of the Purchase
Agreement.
The Initial Securities are being
issued as part of the financing to effect the
Acquisition.
Upon consummation of the Acquisition
(the “Acquisition Closing Date”), the Company shall
cause (1) each of Duane Reade and Duane Reade GP, a New York
general partnership (“Duane Reade GP”) to execute
supplemental indentures to the Indenture, pursuant to which each of
them will become a co-obligor of all the obligations of the Company
under the Initial Securities and the Indenture, (2) each of the
direct and indirect domestic subsidiaries of Duane Reade (other
than Duane Reade GP) (collectively, the “Guarantors”)
to execute supplemental indentures to the Indenture, pursuant to
which each of the Guarantors will fully and unconditionally
guarantee (collectively, the “Guarantees”) all the
obligations of the Company and Duane Reade GP under the Initial
Securities and the Indenture, and (3) each of Duane Reade, Duane
Reade GP and the Guarantors to become parties hereto and to the
Purchase Agreement pursuant to joinder agreements substantially in
the form attached to the Purchase Agreement as Exhibit C (the
“Joinder Agreements”).
The parties hereby agree as
follows:
Section
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Acquisition:
The acquisition of Duane Reade
by an investor group led by Oak Hill Capital Partners, L.P. through
the merger of the Company into Duane Reade .
Acquisition Closing
Date: As defined in
the recitals 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.
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.
Duane Reade:
As defined in the preamble
hereto.
Duane Reade GP:
As defined in the recitals
hereto.
Effectiveness Target
Date: As defined in
Section 5 hereof.
Exchange Act:
The Securities Exchange Act of
1934.
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
9.75% Senior Subordinated Notes due 2011, of the same series under
the Indenture as the Initial Securities, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this
Agreement.
Guarantors:
As defined in the recitals
hereto.
Holders:
As defined in Section 2(b)
hereof.
Indemnified
Holder: As defined
in Section 8(a) hereof.
Indenture:
The Indenture, dated as of July 30,
2004, by and among the Company, U.S. Bank National Association, as
trustee (the “Trustee”), and, upon consummation of
the
Acquisition, Duane Reade, Duane Reade GP and the
Guarantors, pursuant to which the Securities are to be issued, as
such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial
Purchaser: As
defined in the preamble hereto.
Initial
Placement: The
issuance and sale by the Company of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
Initial
Securities: As
defined in the preamble hereto.
Interest Payment
Date: As defined in
the Indenture and the Securities.
NASD:
NASD Inc.
Participating Broker-Dealer
: Any of the Initial
Purchasers and any other Broker-Dealer which makes a market in the
Initial Securities and exchanges Transfer Restricted Securities in
the Exchange Offer for Exchange Securities.
Person:
An individual, partnership,
corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
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.
Purchase Agreement:
As defined in the recitals
hereto.
Registration Actions:
As defined in Section 4(c)
hereof.
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 Initial Securities and the
Exchange Securities.
Securities Act:
The Securities Act of
1933.
Shelf Registration
Statement: As
defined in Section 4(a) hereof.
Suspension Notice:
As defined in Section 4(c)
hereof.
Suspension Period:
As defined in Section 4(c)
hereof.
Trust Indenture
Act: The Trust
Indenture Act of 1939, as amended.
Transfer Restricted
Securities: Each
Initial Security, until the earliest to occur of (a) 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, (b) the date on which such
Initial Security has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf
Registration Statement and (c) the date on which such Initial
Security is distributed to the public pursuant to Rule 144 under
the Securities Act or by a Broker-Dealer pursuant to the
“Plan of Distribution” contemplated by the Exchange
Offer Registration Statement (including delivery of the Prospectus
contained therein).
Underwritten Registration or
Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the
public.
Section
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 (each, a “Holder”)
whenever such Person owns Transfer Restricted
Securities.
Section
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), the Company shall (i) cause to be filed with the
Commission on or prior to the 120 th day after the
Acquisition Closing Date (or if such 120th day is not a Business
Day, the next succeeding Business Day), a Registration Statement
under the Securities Act relating to the Exchange Securities and
the Exchange Offer, (ii) use its reasonable best efforts to cause
such Registration Statement to become effective on or prior to the
180 th day after the Acquisition Closing Date (or if
such 180th day is not a Business Day, the next succeeding Business
Day), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become
effective, (B) if applicable, file a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) use its reasonable best efforts to cause all
necessary filings in connection with the registration and
qualification of the Exchange Securities to be made under the state
securities or blue sky laws of such jurisdictions as any Holder
shall reasonably request in writing by the time the Exchange Offer
Registration Statement is declared effective by the Commission, it
being agreed that no such registration or qualification will be
made unless so requested, to permit Consummation of the Exchange
Offer; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(a), or (ii) take any
action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject,
and (iii) as promptly
as practicable after the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange
Offer 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 Initial Securities
held by Broker-Dealers as contemplated by Section 3(c)
hereof.
(b) The Company shall use its
reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously and shall 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 and not more than
45 days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders. The Company
shall cause the Exchange Offer to comply in all material respects
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 reasonable best efforts to cause the Exchange Offer to be
Consummated on or prior to the 210 th day after the
Acquisition Closing Date (or if such 210 th day is not a
Business Day, the next succeeding Business Day).
(c) The Company shall indicate
in a “Plan of Distribution” section contained in the
Prospectus forming a part of the 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 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 as a
result of a change in policy after the date of this
Agreement.
The Company shall use its reasonable
best 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 in all material respects 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 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 furnish as soon as
practicable as many copies of the latest version of such Prospectus
to Broker-Dealers as are reasonably requested at any time during
such 180-day (or shorter as provided in the foregoing sentence)
period in order to facilitate such resales.
Section
4. Shelf
Registration.
(a) Shelf
Registration. If (i) 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 within 210 days after
the Acquisition Closing Date (or if such 210th day is not a
Business Day, the next succeeding Business Day), or (iii) with
respect to any Holder of Transfer Restricted Securities (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 and that 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 or Initial Purchaser’s request, the
Company shall
(x) as promptly as practicable
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”) on or prior to the
earliest to occur of (1) the later of (x) the 45th day after the
date on which the Company determines that it is not required to
file the Exchange Offer Registration Statement and (y) the 120th
day after the Acquisition Closing Date, (2) the 210th day after the
Acquisition Closing Date (in the case of clause (ii) above) and (3)
the 45th day after the date on which the Company receives notice
from a Holder of Transfer Restricted Securities or an Initial
Purchaser as contemplated by clause (iii) above (such earliest 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 reasonable best
efforts to cause such Shelf Registration Statement to be declared
effective by the Commission on or before the later of (x) the 90th
day after the Shelf Filing Deadline (or if such 90th day is not a
Business Day, the next succeeding Business Day) and (y) the 180
th day after the Acquisition Closing Date.
The Company shall use its reasonable best
efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as 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 in all
material respects with the requirements of this Agreement, the
Securities Act and the rules and regulations of the Commission as
announced from time to time, for a period of two years 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).
(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. 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.
(c) Suspension .
Notwithstanding anything to the contrary and subject to the
limitation set forth in the next succeeding paragraph, at any time
after the effectiveness of the Shelf Registration Statement, the
Company shall be entitled to suspend its obligation to file any
amendment to the Shelf Registration Statement, furnish any
supplement or amendment to a Prospectus included in the Shelf
Registration Statement, make any other filing with the Commission,
cause the Shelf Registration Statement or other filing with the
Commission to remain effective or take any similar action
(collectively, “Registration Actions”) upon (A) the
issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation
of proceedings with respect to the Shelf Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact as a result of
which the Shelf Registration Statement would or shall contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, or the related Prospectus would
or shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence
or existence of any corporate development that, in the discretion
of the Company, makes it appropriate to postpone or suspend the
availability of the Shelf Registration Statement and the related
Prospectus. Upon the occurrence of any of the conditions
described in clause (A), (B) or (C) above, the Company shall give
prompt notice (a “Suspension Notice”) thereof to the
Holders. Upon the termination of such condition, the Company
shall give prompt notice thereof to the Holders and shall promptly
proceed with all Registration Actions that were suspended pursuant
to this paragraph.
The Company may only suspend
Registration Actions pursuant to the preceding paragraph for one or
more periods (each, a “Suspension Period”) not to
exceed, in the aggregate, (x) sixty days in any three month period
or (y) ninety days in any twelve month period, during which no
Liquidated Damages (as defined in Section 5) shall be
payable. Each Suspension Period shall be deemed to begin on
the date the relevant Suspension Notice is given to the Holders and
shall be deemed to end on the earlier to occur of (1) the date on
which the Company gives the Holders a notice that the Suspension
Period has terminated and (2) the date on which the number of
days during which a Suspension Period has been in effect exceeds,
in the aggregate, (x) sixty days in any three month period or (y)
ninety days in any twelve month period.
Section
5. Liquidated
Damages. Subject to
the Company’s ability to declare Suspension Periods with
respect to clause (iv) below, if (i) any of the Registration
Statements required by this Agreement is not filed with the
Commission on or prior to the date specified for such filing in
this Agreement, (ii) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date
specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer
has not been Consummated on or prior to the date specified for such
consummation in this Agreement or (iv) 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 for more than 30 days (each such event referred to
in clauses (i) through (iv), a “Registration Default”),
the Company hereby agrees to pay liquidated damages
(“Liquidated Damages”) in the form of additional
interest in cash to each Holder in an amount equal to 0.25% per
annum of the aggregate principal amount of the Transfer Restricted
Securities for the period of occurrence of the Registration Default
until such time as no Registration Default is in effect, which rate
shall increase by 0.25% per annum for each subsequent 90-day period
during which such Registration Default continues, but in no event
shall such increase exceed 1.00% per annum. Following the cure of
all Registration Defaults relating to any particular Transfer
Restricted Securities, the Liquidated Damages will cease to accrue
from the date of such cure and the interest rate on the Transfer
Restricted Securities will revert to the original interest rate
borne by such Transfer Restricted Securities; provided,
however, that, if after the date such Liquidated Damages cease
to accrue, a different Registration Default occurs, Liquidated
Damages may again commence accruing pursuant to the foregoing
provisions.
Notwithstanding the foregoing, (i)
the amount of Liquidated Damages payable shall not increase because
more than one Registration Default has occurred and is continuing
and (ii) a Holder of Transfer Restricted Securities who is not
entitled to the benefits of the Shelf Registration Statement shall
not be entitled to Liquidated Damages with respect to a
Registration Default that pertains to the Shelf Registration
Statement.
All references in the Indenture to
“interest” include the Liquidated Damages payable
pursuant to this Section 5, and all accrued Liquidated Damages
shall be payable to the Holders entitled thereto, in the manner
provided for the payment of interest in the Indenture, as more
fully set forth in the Indenture and the Securities. All
obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied
in full.
Section
6. Registration
Procedures.
(a) Exchange Offer
Registration Statement. In connection with the Exchange
Offer, the Company shall comply with all of the provisions of
Section 6(c) hereof, shall use its reasonable best efforts to
effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or
methods of distribution thereof set forth in the Registration
Statement 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, the Company
hereby
agrees to seek a no-action letter or
other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Initial Securities.
The Company 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. The Company 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
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, the Company shall comply with all the provisions of
Section 6(c) hereof and shall use its reasonable best efforts to
effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof set forth in such Shelf
Registration Statement, and pursuant thereto the Company will as
promptly as practicable 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 set forth in such Shelf Registration Statement.
(c) General
Provisions. Except as otherwise provided, in connection
with any Registration Statement and any Prospectus required by this
Agreement to permit the sale or
resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the
related Prospectus required to permit resales of Initial Securities
by Broker-Dealers), the Company shall:
(i) use its reasonable best
efforts to keep such Registration Statement continuously effective
and provide all requisite financial statements 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 as
promptly as practicable 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 reasonable best efforts to cause such amendment
to be declared effective and such Registration Statement
and
