Exhibit 4.6
REGISTRATION RIGHTS
AGREEMENT
Dated as of January 27,
2005
by and among
DLI ACQUISITION
CORP.
to be merged with and
into
DEL LABORATORIES,
INC.
and
THE GUARANTORS LISTED ON SCHEDULE
I HERETO
and
BEAR, STEARNS & CO.
INC.
J.P. MORGAN SECURITIES
INC.
DEUTSCHE BANK SECURITIES
INC.
This Registration Rights Agreement
(this “ Agreement ”) is made and entered
into as of January 27, 2005, by and among DLI Acquisition Corp., a
Delaware corporation (“ DLI Acquisition
”), which will be merged with and into Del Laboratories,
Inc., a Delaware corporation (the “ Merger
”), with Del Laboratories, Inc. continuing as the surviving
corporation (the “ Company ”) and Bear,
Stearns & Co. Inc., J.P. Morgan Securities Inc. and Deutsche
Bank Securities Inc. (each an “ Initial
Purchaser ” and, together, the “ Initial
Purchasers ”), who have agreed to purchase the
Company’s 8.00% Senior Subordinated Notes due 2012 (the
“ Initial Notes ”) pursuant to the
Purchase Agreement (as defined below) and, as of the time of the
consummation of the Merger on the Closing Date (the “
Time of Merger ”) the Company and the
guarantors listed on Schedule I hereto (the “
Guarantors ”).
This Agreement is made pursuant to
the Purchase Agreement, dated January 19, 2005 (the “
Purchase Agreement ”), by and among DLI
Acquisition and the Initial Purchasers and, as of the Time of
Merger, pursuant to that certain first amendment to the Purchase
Agreement, the Company and the Guarantors. In order to induce the
Initial Purchasers to purchase the Initial Notes, DLI Acqusition
has agreed, and the Company and the Guarantors, at the Time of
Merger, will agree pursuant to that certain First Amendment to the
Registration Rights Agreement, dated as of the date hereof (the
“ First Amendment ”), among the Company,
the Guarantors and the Initial Purchasers, a copy of which is
attached hereto as Exhibit A , to provide the registration
rights set forth in this Agreement. The execution and delivery of
this Agreement and the First Amendment hereto is a condition to the
obligations of the Initial Purchasers set forth in Section 8 of the
Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Indenture,
dated as of January 27, 2004 (the “ Indenture
”), among DLI Acquisition and Wells Fargo Bank, National
Association, as trustee (the “ Trustee
”), relating to the Initial Notes and the Exchange Notes (as
defined below). DLI Acquisition’s rights and obligations
under the Indenture and the Initial Notes will be assumed by the
Company by operation of law in the Merger and the Company will
agree to become bound by the Indenture and the Notes, and the
Company’s rights and obligations under the Indenture and the
Notes will be guaranteed by the Guarantors (as defined below), at
the Time of Merger pursuant to a Supplemental Indenture, dated as
of the Closing Date, among the Company, the Guarantors and the
Trustee.
The parties hereby agree as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the
following capitalized terms shall have the following
meanings:
Act
: The Securities Act of 1933, as
amended.
Affiliate
: As defined in Rule 144.
Blackout Period
: As defined in Section 6(d)
hereof.
Broker-Dealer
: Any broker or dealer registered
under the Exchange Act.
Business Day
: Any day other than a Saturday, a
Sunday or a day on which banking institutions in the City of New
York are authorized by law, regulation or executive order to remain
closed.
Closing Date
: The date hereof.
Commission
: The United States Securities and
Exchange Commission.
Controlling
Person : As defined
in Section 8(a) hereof.
Consummate
: An Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the
occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Exchange Offer, (b) the maintenance of
such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less
than the period required pursuant to Section 3(b) hereof and (c)
the delivery by the Company to the Registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Consummation
Deadline : As defined
in Section 3(b) hereof.
Exchange Act
: The Securities Exchange Act of
1934, as amended.
Exchange Notes
: The Company’s 8.00% Senior
Subordinated Notes due 2012 to be issued pursuant to the Indenture
(i) in the Exchange Offer or (ii) as contemplated by Section 4
hereof.
Exchange Offer
: The exchange and issuance by the
Company of a principal amount of Exchange Notes (which shall be
registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Initial Notes that are
tendered by such Holders in connection with such exchange and
issuance.
Exchange Offer Effectiveness
Deadline : As defined
in Section 3(a) hereof.
Exchange Offer Registration
Statement : The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Filing Deadline
: As defined in Section 3(a)
hereof.
Holders
: As defined in Section 2
hereof.
Person
: An individual, trustee,
corporation, partnership, limited liability company, joint stock
company, trust, unincorporated association, union, business
association, firm or other legal entity.
Prospectus
: The prospectus included in a
Registration Statement at the time such Registration Statement is
declared effective, 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.
2
Recommencement
Date : As defined in
Section 6(d) hereof.
Registration
Default : As defined
in Section 5 hereof.
Registration
Statement : Any
registration statement of the Company and the Guarantors relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this
Agreement, (ii) including the Prospectus included therein, and
(iii) including all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein.
Rule 144
: Rule 144 promulgated under the
Act.
Shelf Filing
Deadline : As defined
in Section 4(a) hereof.
Shelf Registration
Statement : As
defined in Section 4 hereof.
Shelf Registration Statement
Effectiveness Deadline : As defined in Section 4(a) hereof.
Suspension
Notice : As defined
in Section 6(d) hereof.
TIA
: The Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the
Indenture.
Transfer Restricted
Securities : Each
Initial Note until the earliest to occur of (a) the date on which
such Initial Note has been exchanged in the Exchange Offer by a
Person other than a Broker-Dealer for an Exchange Note entitled to
be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) following
the exchange by a Broker-Dealer in the Exchange Offer of an Initial
Note for an Exchange Note, the earlier of (x) the date that is 90
days after the Consummation of the Exchange Offer and (y) the date
on which such Exchange Note is sold to a purchaser who receives
from such Broker-Dealer on or prior to the date of such sale a copy
of the Prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Initial Note has been
effectively registered under the Act and disposed of in accordance
with the Shelf Registration Statement (and the purchasers thereof
have been issued Exchange Notes) or (d) the date on which such
Initial Note is distributed to the public pursuant to Rule
144.
SECTION 2. HOLDERS
A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “ Holder
” ) whenever such Person owns Transfer Restricted
Securities.
3
SECTION 3. REGISTERED EXCHANGE
OFFER
(a) Unless the Exchange Offer shall
not be permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a)(i) below have been complied
with), the Company and the Guarantors shall (i) use all
commercially reasonable efforts to cause the Exchange Offer
Registration Statement to be filed with the Commission, as soon as
practicable after the Closing Date, but in no event later than 90
days after the Closing Date (such 90 th day being the “ Filing
Deadline ” ), (ii) use all commercially reasonable
efforts to cause such Exchange Offer Registration Statement to
become effective at the earliest possible time, but in no event
later than the day that is the 180 th day after such Exchange Offer
Registration Statement was filed with the Commission (such day
being the “ Exchange Offer Effectiveness
Deadline ”), (iii) 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 it to
become effective, (B) file, if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to
Rule 430A under the Act and (C) cause all necessary filings, if
any, in connection with the registration and qualification of the
Exchange Notes to be made under the blue sky laws of such
jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange
Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form
permitting (i) registration of the Exchange Notes to be offered in
exchange for the Initial Notes that are Transfer Restricted
Securities and (ii) resales of Exchange Notes by Broker-Dealers
that tendered into the Exchange Offer Initial Notes that such
Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities (other than
Initial Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) below. The Exchange
Offer shall not be subject to any conditions, other than that (i)
the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the SEC and (ii) no
action or proceeding shall have been instituted or threatened in
any court or by any governmental agency which might materially
impair the ability of the Company and the Guarantors to proceed
with the Exchange Offer, and no material adverse development shall
have occurred in any existing action or proceeding with respect to
the Company and Guarantors.
(b) The Company and the Guarantors
shall use all of their respective commercially reasonable 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 20 Business Days. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The
Company and the Guarantors shall use all of their respective
commercially reasonable efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in no event
later than 30 Business Days thereafter, or longer, if required by
applicable law or Commission policy (such 30th (or longer) day
being the “ Consummation Deadline
”).
(c) The Company and the Guarantors
shall include a “Plan of Distribution” section in the
Prospectus contained in the Exchange Offer Registration Statement
and indicate therein that
4
any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer
as a result of market-making activities or other trading activities
(other than Initial Notes acquired directly from the Company or any
Affiliate of the Company), may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. Such “Plan of
Distribution” section shall also contain all other
information with respect to such sales by such Broker-Dealers that
the Commission may require in order to permit such sales pursuant
thereto, but such “Plan of Distribution” shall not name
any such Broker-Dealer or disclose the amount of Transfer
Restricted Securities held by any such Broker-Dealer, except to the
extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this Agreement. See
the Shearman & Sterling no-action letter (available July
2, 1993).
Because such Broker-Dealer may be
deemed to be an “underwriter” within the meaning of the
Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any
Exchange Notes received by such Broker-Dealer in the Exchange
Offer, the Company and Guarantors shall permit the use of the
Prospectus contained in the Exchange Offer Registration Statement
by such Broker-Dealer to satisfy such prospectus delivery
requirement. To the extent necessary to ensure that the Prospectus
contained in the Exchange Offer Registration Statement is available
for sales of Exchange Notes by Broker-Dealers, the Company and the
Guarantors agree to use all of their commercially reasonable
efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 6(a) and (c)
hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer is Consummated or such shorter
period ending on 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 and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus
to such Broker-Dealers, promptly upon request, and in no event
later than one Business Day after such request, at any time during
such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration . If
(i) the Company and the Guarantors are not (A) required to file the
Exchange Offer Registration Statement or (B) permitted to
Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company
and the Guarantors have complied with the procedures set forth in
Section 6(a)(i) below) or (ii) any Holder of Transfer Restricted
Securities (A) other than an Initial Purchaser, is prohibited by
law or Commission policy from participating in the Exchange Offer,
(B) may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and
the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such
Holder (other than, in either case, due solely to the status of
such Holder as an Affiliate of the Company or any Guarantor or due
to such Holder’s inability to make the representations in
Section 6(a)(ii) hereof) or (C) is an Initial Purchaser and so
requests with respect to Initial Notes that have the status of
unsold allotments in an initial distribution, and notification
thereof is given by such Holder to the Company prior to the 20th
Business Day following the Consummation of the Exchange Offer, then
the Company and the Guarantors shall:
5
(x) use all commercially reasonable
efforts on or prior to 60 days after the earlier of (i) the date as
of which the Company determines that the Exchange Offer
Registration Statement will not be or cannot be, as the case may
be, filed as a result of clause (a)(i) above and (ii) the date on
which the Company receives the notice specified in clause (a)(ii)
above (such earlier date, the “ Shelf Filing
Deadline ”), to file a shelf registration statement
with the Commission pursuant to Rule 415 under the Act (which may
be an amendment to the Exchange Offer Registration Statement (the
“ Shelf Registration Statement ”)),
relating to all Transfer Restricted Securities; and
(y) use all commercially reasonable
efforts to cause such Shelf Registration Statement to become
effective on or prior to 120 days after the Shelf Filing Deadline
(such 120 th day, the “ Shelf
Registration Statement Effectiveness Deadline
”).
If, after the Company and the
Guarantors have filed an Exchange Offer Registration Statement that
satisfies the requirements of Section 3(a) above, the Company and
the Guarantors are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not
permitted as a result of the circumstances described under clause
(a)(i)(B) above (i.e., applicable federal law or Commission
policy), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x)
above; provided that, in such event, the Company and the
Guarantors shall remain obligated to meet the Shelf Registration
Statement Effectiveness Deadline.
To the extent necessary to ensure
that the Shelf Registration Statement is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to
the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the
Company and the Guarantors shall use all of their respective
commercially reasonable efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time,
for a period of at least two years (as extended pursuant to Section
6(d) hereof) following the Closing Date, or such shorter period as
will terminate at (i) such time all Transfer Restricted Securities
covered by such Shelf Registration Statement have been sold
pursuant thereto or (ii) such time as the applicable Notes may be
distributed to the public under Rule 144(k) promulgated under the
Securities Act without volume limitation.
(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 days
after receipt of a request therefor, the information specified in
Item 507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with any Shelf Registration Statement or
Prospectus or preliminary prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to liquidated
damages pursuant to Section 5 hereof unless and until such Holder
shall have provided all such information. Each selling Holder
agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading.
6
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by
this Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline or Shelf Filing Deadline, as applicable,
(ii) any of such Registration Statements is not declared effective
by the Commission on or prior to the Exchange Offer Effectiveness
Deadline or the Shelf Registration Statement Effectiveness
Deadline, as applicable, (iii) the Exchange Offer has not been
Consummated within 30 Business Days of the Exchange Offer
Effectiveness Deadline or (iv) any Registration Statement required
by this Agreement is filed and declared effective but thereafter
ceases to be effective or usable for its intended purpose (each
such event referred to in clauses (i) through (iv), a “
Registration Default ” ), then the Company and the
Guarantors hereby jointly and severally agree to pay to each Holder
of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to a per annum rate of 0.25% on the
principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration
Default continues for the first 12-week period immediately
following the occurrence of such Registration Default. The amount
of the liquidated damages shall increase by an additional per annum
rate of 0.25% with respect to each subsequent 12-week period until
all Registration Defaults have been cured, up to a maximum amount
of liquidated damages for all Registration Defaults of 1.0% per
annum on the principal amount of Transfer Restricted Securities;
provided that liquidated damages on such Transfer Restricted
Securities may not accrue under more than one of the foregoing
clauses (i) through (iv) at any one time. Notwithstanding anything
to the contrary set forth herein, such liquidated damages shall
cease to accrue on such Transfer Restricted Securities (1) upon the
filing of the Exchange Offer Registration Statement (and/or, if
applicable the Shelf Registration Statement), in the case of clause
(i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement (and/or, if applicable the Shelf
Registration Statement), in the case of clause (ii) above, (3) upon
consummation of the Exchange Offer in the case of clause (iii)
above, or (4) upon the filing of a post effective amendment to the
Registration Statement or an additional Registration Statement that
causes the Exchange Offer Registration Statement (and/or, if
applicable the Shelf Registration Statement) to again be declared
effective or made usable, in the case of clause (iv) above, the
liquidated damages payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), (iii) or (iv), as
applicable, shall cease. Without limiting the foregoing, liquidated
damages with respect to a failure to file, cause to become
effective or maintain the effectiveness of a Shelf Registration
Statement shall cease to accrue upon the consummation of the
Exchange Offer in the case of a Shelf Registration Statement
required to be filed due to failure to consummate the Exchange
Offer within the required period of time.
All accrued liquidated damages shall
be paid to the Holders entitled thereto, in the manner provided for
the payment of interest in the Indenture, on each Interest Payment
Date (as defined in the Indenture), as more fully set forth in the
Indenture and the Notes. Notwithstanding the fact that any
securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company and
the Guarantors to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
7
SECTION 6. REGISTRATION
PROCEDURES
(a) Exchange Offer Registration
Statement . In connection with the Exchange Offer, the Company
and the Guarantors shall (x) comply with all applicable provisions
of Section 6(c) below, (y) use all of their respective commercially
reasonable efforts to effect such exchange and to permit the resale
of Exchange Notes by Broker-Dealers that tendered in the Exchange
Offer Initial Notes that such Broker-Dealer acquired for its own
account as a result of its market-making activities or other
trading activities (other than Initial Notes acquired directly from
the Company or any of its Affiliates) being sold in accordance with
the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) As a condition to its
participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder
who is a Broker-Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (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 either the Company or a Guarantor, (B) it is not
engaged in, and does not intend to engage in, and at the time of
the commencement or consummation of the Exchange Offer, neither
such Holder nor, to the actual knowledge of such Holder, any other
person receiving Exchange Notes from such Holder has no arrangement
or understanding with any person to participate in, a distribution
of the Exchange Notes to be issued in the Exchange Offer, (C) it is
acquiring the Exchange Notes in its ordinary course of business and
(D) if such Holder is a Broker-Dealer, such Holder has acquired the
Initial Notes as a result of market-making activities or other
trading activities and that it will comply with the applicable
provisions of the Securities Act (including, but not limited to,
the prospectus delivery requirements thereunder).
(ii) Prior to effectiveness of the
Exchange Offer Registration Statement, the Company and the
Guarantors shall provide a supplemental letter to the Commission
(A) stating that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available June
5, 1991) as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and (B)
including a representation that neither the Company nor the
Guarantors has entered into any arrangement or understanding with
any Person to distribute the Exchange Notes to be received in the
Exchange Offer and that, to the best of the Company’s and the
Guarantors’ information and belief, each Holder participating
in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer.
(b) Shelf Registration
Statement . In connection with the Shelf Registration
Statement, the Company and the Guarantors shall:
(i) comply with all the provisions
of Section 6(c) below and use all of their respective commercially
reasonable efforts to effect such registration to permit the sale
of
8
the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto
the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on
any appropriate form under the 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 within
the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any
Holder or purchaser of Initial Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Exchange
Notes having an aggregate principal amount equal to the aggregate
principal amount of Initial Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for
cancellation; the Company shall register Exchange Notes on the
Shelf Registration Statement for this purpose and issue the
Exchange Notes to the purchaser(s) of securities subject to the
Shelf Registration Statement in the names as such purchaser(s)
shall designate.
(c) General Provisions . In
connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company and the
Guarantors shall:
(i) use all of their respective
commercially reasonable 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 an untrue statement of 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 (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company and the
Guarantors shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission
review is required, use all of their respective commercially
reasonable efforts to cause such amendment to be declared effective
as soon as practicable;
(ii) use all of their respective
commercially reasonable efforts to prepare and file with the
Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
9
(iii) advise each Holder promptly
and, if requested by such Holder, confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes,
and (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue in
any material respect, or that requires the making of any additions
to or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making of
any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the
Registration State
