EXHIBIT 4.4
RESALE REGISTRATION RIGHTS AGREEMENT
BETWEEN
INFOCROSSING, INC.
AND
LEHMAN BROTHERS INC.
DATED AS OF JUNE 30, 2004
<PAGE>
TABLE OF CONTENTS
PAGE
1.
Definitions.........................................................1
2.
Shelf
Registration..................................................3
3.
Additional
Amounts..................................................5
4.
Registration
Procedures.............................................6
5.
Registration
Expenses..............................................13
6.
Indemnification and
Contribution...................................14
7. Rule
144A..........................................................17
8.
Participation in Underwritten
Registrations........................17
9.
Miscellaneous......................................................18
<PAGE>
RESALE
REGISTRATION RIGHTS AGREEMENT, dated as of June 30, 2004,
between
Infocrossing, Inc., a Delaware corporation
(the "COMPANY"), and Lehman Brothers
Inc.(the "INITIAL PURCHASER").
Pursuant to the
Purchase Agreement, dated June 24, 2004, between the
Company and the Initial Purchaser (the
"PURCHASE AGREEMENT"), the Initial
Purchaser has agreed to purchase from the
Company $60,000,000 ($72,000,000 if
the Initial Purchaser exercises its option
thereunder in full) in aggregate
principal amount at maturity of the
Company's 4.00% Convertible Senior Notes due
2024 (the "Notes"). The Notes will be
convertible into fully paid, nonassessable
shares of common stock, no par value (the
"CONVERSION SHARES"), of the Company
on the terms, and subject to the
conditions, set forth in the Indenture (as
defined herein). To induce the Initial
Purchaser to purchase the Notes, the
Company has agreed to provide the
registration rights set forth in this
Agreement pursuant to Section 3(k) of the
Purchase Agreement.
The parties
hereby agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms
shall have the following meanings:
ADDITIONAL INTEREST: As defined in Section 3(a) hereof.
ADDITIONAL INTEREST PAYMENT DATE: Each Interest Payment Date.
AFFILIATE: As such term is defined in Rule 405 under the
Securities
Act.
AGREEMENT: This Resale Registration Rights Agreement, as
amended,
modified or
otherwise supplemented from time to time in accordance with the
terms
hereof.
BLUE SKY APPLICATION: As defined in Section 6(a) hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
BUSINESS DAY: A day other than a Saturday or Sunday or any day
on
which banking
institutions in New York City are authorized or obligated by
law or executive
order to close.
CLOSING DATE: The date of this Agreement.
COMMISSION: Securities and Exchange Commission.
COMPANY: As defined in the preamble hereto.
CONVERSION SHARES: As defined in the preamble hereto.
EFFECTIVENESS PERIOD: As defined in Section 2(a)(iii) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 2(a)(ii)
hereof.
EXCHANGE ACT: Securities Exchange Act of 1934, as amended, and
the
rules and
regulations of the Commission thereunder.
HOLDER: A Person who owns, beneficially or otherwise, Transfer
Restricted
Securities.
INDEMNIFIED HOLDER: As defined in Section 6(a) hereof.
INDENTURE: The Indenture, dated as of June 30, 2004, between
the
Company, and
Wells Fargo Bank, National Association, as trustee, pursuant
to which the
Notes are to be issued, as such Indenture is amended, modified
or supplemented
from time to time in accordance with the terms thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
INTEREST PAYMENT DATE: As defined in the Indenture.
MAJORITY OF HOLDERS: Holders holding over 50% in aggregate
principal
amount of the
Notes outstanding at the time of determination in question;
provided,
however, that, for the purpose of this definition, a holder of
Conversion
Shares which constitute Transfer Restricted Securities when
issued upon
conversion of Notes shall be deemed to hold an aggregate
principal amount
of Notes (in addition to the principal amount of Notes
held by such
holder) equal to the product of (x) the number of such
Conversion
Shares held by such holder and (y) the prevailing conversion
price, such
prevailing conversion price as determined in accordance with
Section 12 of
the Indenture.
NASD: National Association of Securities Dealers, Inc.
NOTES: As defined in the preamble hereto.
PERSON: An individual, partnership, corporation, unincorporated
organization,
limited liability company, trust, joint venture or a
government or
agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Shelf 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 preamble hereto.
QUESTIONNAIRE: As defined in Section 2(b) hereof.
QUESTIONNAIRE DEADLINE: As defined in Section 2(b) hereof.
RECORD HOLDER: With respect to any Additional Interest Payment
Date,
each Person who
is a Holder of Transfer Restricted Securities that are
Notes on the
record date with respect to the Interest Payment Date on which
such Additional
Interest Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 3(a) hereof.
SALE NOTICE: As defined in Section 4(e) hereof.
SECURITIES ACT: Securities Act of 1933, as amended, and the rules
and
resolutions of
the Commission thereunder.
SHELF FILING DEADLINE: As defined in Section 2(a)(i) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(i)
hereof.
SUSPENSION NOTICE. As defined in Section 4(c) hereof.
SUSPENSION PERIOD. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as amended, and the rules and
regulations of
the Commission thereunder, in each case, as in effect on the
date the
Indenture is qualified under the TIA.
TRANSFER RESTRICTED SECURITIES: Each Note and each Conversion
Share
issued upon
conversion of the Notes until the earliest to occur of:
(A) the date on which such Note or such Conversion Share issued
upon
conversion has
been effectively registered under the Securities Act and
disposed of in
accordance with the Shelf Registration Statement; and
(B) the date on which such Note or such Conversion Share issued
upon
conversion
ceases to be outstanding (whether as a result of redemption,
repurchase and
cancellation, conversion or otherwise).
TRUSTEE: As defined in Section 1.1 of the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration
in
which Notes or
Conversion Shares are sold to an underwriter for reoffering
to the
public.
2. Shelf
Registration.
(a) The Company
shall:
(i) not later than 15 days after the date hereof (the "SHELF
FILING
DEADLINE"),
cause to be filed a registration statement pursuant to Rule 415
under the
Securities Act (together with any amendments thereto, and
including any
documents incorporated by reference therein, the "SHELF
REGISTRATION
STATEMENT"), which Shelf Registration Statement shall provide
for resales of
all Transfer Restricted Securities held by Holders that have
provided the
information required pursuant to the terms of Section 2(b)
hereof;
(ii) use its commercially reasonable efforts to cause the Shelf
Registration
Statement to be declared effective by the Commission not later
than 120 days
after the date hereof (the "EFFECTIVENESS TARGET DATE"); and
(iii) keep the Shelf Registration Statement continuously
effective,
supplemented and
amended as required by the provisions of Section 4(b)
hereof to the
extent necessary to ensure that (A) it is available for
resales by the
Holders of Transfer Restricted Securities entitled to the
benefit of this
Agreement and (B) conforms with the requirements of this
Agreement and
the Securities Act, for a period (the "EFFECTIVENESS PERIOD")
that will
terminate upon the earliest of (x) the second anniversary of
the
effective date
of the Shelf Registration Statement, (y) when all Transfer
Restricted
Securities registered under the Shelf Registration Statement
have been sold
in accordance with it and (z) when all Transfer Restricted
Securities have
ceased to be outstanding (whether as a result of
redemption, repurchase
and cancellation, conversion or otherwise).
(b) To have its
Transfer Restricted Securities included in the Shelf
Registration Statement pursuant to this
Agreement, each Holder shall complete
the Selling Securityholder Notice and
Questionnaire, the form of which is
contained in Exhibit A to this Agreement
(the "QUESTIONNAIRE"). The Company
shall mail the Questionnaire to each Holder
not less than 20 Business Days (but
not more than 40 Business Days) prior to
the time the Company intends in good
faith to have the Shelf Registration
Statement declared effective by the
Commission. Holders are required to
complete and deliver the Questionnaire to
the Company prior to or on the 20th
Business Day after the date of a written
request therefor by the Company (which
request shall include a copy of the
Questionnaire) (such deadline, the
"QUESTIONNAIRE DEADLINE"). Holders that do
not complete and deliver the Questionnaire
will not be named as selling
securityholders in the Prospectus. Prior to
such time, each Holder may complete
the Questionnaire and deliver it to the
Company prior to such request and, as a
result, shall be entitled to have its
Transfer Restricted Securities included in
the initial Shelf Registration Statement
filed with the Commission. In addition,
upon receipt of written request for
additional information from the Company,
each Holder who intends to be named as a
selling securityholder in the Shelf
Registration Statement shall furnish to the
Company in writing, within 20
Business Days after such Holder's receipt
of such request, such additional
information regarding such Holder and the
proposed distribution by such Holder
of its Transfer Restricted Securities, in
connection with the Shelf Registration
Statement or Prospectus or Preliminary
Prospectus included therein and in any
application to be filed with or under state
securities law, as the Company may
reasonably request. In connection with all
such requests for information from
Holders of Transfer Restricted Securities,
the Company shall notify such Holders
of the requirements set forth in this
paragraph regarding their obligation to
provide the information requested pursuant
to this Section. Each Holder as to
which the Shelf Registration Statement is
being effected agrees to furnish
promptly to the Company all information
required to be disclosed in order to
make information previously furnished to
the Company by such Holder not
materially misleading. Upon receipt of a
completed Questionnaire after the
Questionnaire Deadline, the Company will as
promptly as practicable, but in any
event within 10 Business Days of receipt,
file any amendments or supplements to
the Shelf Registration Statement to allow
such Holder to be named as a selling
Holder in the Prospectus included therein;
provided, however, that the Company
shall not be obligated to file (i) more
than one such pre-effective amendment or
supplement for all Holders during any
fiscal quarter and (ii) more than one
post-effective amendment for all Holders
during any semi-annual period, and
provided further, in all such cases
involving supplements or amendments (whether
pre-effective or post-effective), the
Company shall only be obligated to make a
filing when the principal amount of Notes
to be included in such amendment or
supplement is more than $1 million.
3. Additional
Interest.
(a) The Company
and the Initial Purchaser agree that the Holders of
Transfer Restricted Securities will suffer
damages if the Company fails to
fulfill its obligations under Section 2
hereof and that it would not be feasible
to ascertain the extent of such damages
with precision. Accordingly, if:
(i) the Shelf Registration Statement is not filed with the
Commission
prior to or on
the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective
by the
Commission prior to or on the Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration
Statement is filed and declared effective but, during the
Effectiveness
Period, shall thereafter cease to be effective or fail to be
usable for its
intended purpose without such disability being cured within
five Business
Days by an effective post-effective amendment to the Shelf
Registration
Statement, a supplement to the Prospectus or a report filed
with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act
that cures such failure; or
(iv) (A) prior to or on the 45th or 60th day, as the case may be,
of
any Suspension
Period (as such term is defined herein), such suspension has
not been
terminated or (B) Suspension Periods exceed an aggregate of 90
days in any 360
day period,
(each such event
referred to in foregoing clauses (i) through (iv), a
"REGISTRATION
DEFAULT"), the Company hereby agrees to pay additional
interest
("ADDITIONAL INTEREST") with respect to the Transfer Restricted
Securities that
are Notes from and including the day following the
Registration
Default to but excluding the day on which the Registration
Default has been
cured, accruing at the following rate:
(i) with respect to the first 90-day period during which a
Registration Default shall have occurred, 0.25% per annum of
the
principal amount of the Notes;
(ii) with respect to the period commencing on the 91st day
following the day the Registration Default shall have occurred to
the
second anniversary of the Closing Date, 1.00% per annum of the
principal amount of the Notes;
(iii) with respect to the period commencing on the second
anniversary of the Closing Date to the third anniversary of the
Closing Date, 3.00% per annum of the principal amount of the
Notes;
and
(iv) thereafter the rate of Additional Interest shall increase
annually by 2.00 percentage points on each anniversary of the
Closing
Date, commencing with
the third anniversary (for purposes of
illustration, the rate of Additional Interest would increase to
9.00%
per annum of the principal amount of the Notes on the fifth
anniversary of the Closing Date).
No Additional
Interest shall be payable on any Notes that have been
converted into shares of our common stock.
A Holder will not be entitled to
Additional Interest unless it has provided
all information requested by the
Questionnaire prior to the deadline
specified therein. Following the cure of all
Registration Defaults relating to any
particular Notes, the accrual of
Additional Interest with respect to such
Notes shall cease.
(b) So long as
any Notes remain outstanding, the Company shall notify the
Trustee within two Business Days after each
and every date on which an event
occurs in respect of which Additional
Interest is required to be paid. Any
amounts of Additional Interest due pursuant
to clause (a) of this Section 3 will
be payable in cash semi-annually in arrears
on each Additional Interest Payment
Date, commencing with the first such date
occurring after any such Additional
Interest commences to accrue, to Holders to
whom regular interest is payable on
such Additional Interest Payment Date with
respect to Notes that are Transfer
Restricted Securities. All accrued
Additional Interest shall be paid by the
Company to Record Holders of Transfer
Restricted Securities that are Notes on
each Additional Interest Payment Date by
wire transfer of immediately available
funds or by federal bank check. The Company
agrees to deliver all notices,
certificates and other documents
contemplated by the Indenture in connection
with the payment of Additional
Interest.
All obligations
of the Company set forth in this Section 3 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 Transfer Restricted Security
shall have been satisfied in full.
The Additional
Interest set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer
Restricted Securities for such
Registration Default.
4. Registration
Procedures.
(a) In
connection with the Shelf Registration Statement, the Company
shall
comply with all the provisions of Section
4(b) hereof and shall use its
commercially reasonable 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,
and pursuant thereto, shall as
expeditiously as possible prepare and file
with the Commission a Shelf
Registration Statement relating to the
registration on any appropriate form
under the Securities Act.
(b) In
connection with the Shelf Registration Statement and any
Prospectus
required by this Agreement to permit the
sale or resale of Transfer Restricted
Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with
this
Section 4(b) of
the existence of any fact or event of the kind described in
Section
4(b)(iii)(D), keep the Shelf Registration Statement
continuously
effective during
the Effectiveness Period; upon the occurrence of any event
that would cause
the Shelf Registration Statement or the Prospectus
contained
therein (A) to contain a material misstatement or omission or
(B)
not be effective
and usable for the resale of Transfer Restricted
Securities
during the Effectiveness Period, the Company shall file
promptly
an appropriate
amendment to the Shelf Registration Statement, a supplement
to the
Prospectus or a report filed with the Commission pursuant to
Section
13(a), 13(c), 14 or 15(d) of
the Exchange Act, 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 and the Shelf Registration Statement and
the related
Prospectus to become usable for their intended purposes as soon
as practicable
thereafter. Notwithstanding the foregoing, the Company may
suspend the
effectiveness of the Shelf Registration Statement by written
notice to the
Holders for a period not to exceed an aggregate of 45 days in
any 90-day
period (each such period, a "SUSPENSION PERIOD"), and not to
exceed an
aggregate of 90 days in any 360-day period, if:
(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement
would, in the Company's judgment, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; and
(y) the Company reasonably determines that
the disclosure of such event at such time would have
a material adverse effect on the business of the
Company and its subsidiaries taken as a whole;
provided that in
the event the disclosure relates to a previously
undisclosed
proposed or pending material business transaction, the
disclosure of
which would impede the Company's ability to consummate such
transaction, the
Company may extend a Suspension Period from 45 days to 60
days during any
90-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective
amendments to the Shelf Registration Statement as may be
necessary to
keep the Shelf Registration Statement effective during the
Effectiveness
Period; 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 securities covered by the Shelf
Registration
Statement during the applicable period in accordance with the
intended method
or methods of distribution by the sellers thereof set forth
in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the selling Holders promptly (but in any event
within
five Business
Days) and, if requested by such Persons, to confirm such
advice in
writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the
Shelf 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
Shelf
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 Shelf Registration Statement
under
the Securities 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, or
(D) of the existence of any fact or the happening of any event,
during the Effectiveness Period, that makes any statement of a
material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document
incorporated by reference therein untrue, or that requires the
making
of any additions to or changes in the Shelf Registration Statement
or
the Prospectus in order to make the statements therein not
misleading.
If at any time the Commission shall issue any stop order
suspending
the
effectiveness of the Shelf Registration Statement, or any state
securities
commission or other regulatory authority shall issue an order
suspending the
qualification or exemption from qualification of the
Transfer
Restricted Securities under state securities or Blue Sky laws,
the
Company shall
use its commercially reasonable efforts to obtain the
withdrawal or
lifting of such order at the earliest possible time and will
provide to the
Initial Purchaser and each Holder who is named in the Shelf
Registration
Statement prompt notice of the withdrawal of any such order.
(iv) Furnish to each of the selling Holders before filing with
the
Commission, a
copy of the Shelf Registration Statement and copies of any
Prospectus
included therein or any amendments or supplements to the Shelf
Registration
Statement or Prospectus (other than documents incorporated by
reference after
the initial filing of the Shelf Registration Statement),
which documents
will be subject to the review of such holders for a period
of at least ten
Business Days (in the case of the Shelf Registration
Statement and
Prospectus) and two Business Days (in the case of any
amendment or
supplement thereto), and the Company will not file the Shelf
Registration Statement or
Prospectus or any amendment or supplement to the
Shelf
Registration Statement or Prospectus (other than documents
incorporated by
reference) to which a selling Holder of Transfer Restricted
Securities
covered by the Shelf Registration Statement shall reasonably
object prior to
the filing thereof.
(v) Make available at reasonable times for inspection by one or
more
representatives
of the selling Holders, designated in writing by a Majority
of Holders whose
Transfer Restricted Securities are included in the Shelf
Registration
Statement, and any attorney or accountant retained by such
selling Holders
all financial and other records, pertinent corporate
documents and
properties of the Company as shall be reasonably necessary to
enable them to
exercise any applicable due diligence responsibilities, and
cause the
Company's officers, directors, managers and employees to supply
all information
reasonably requested by any such representative or
representatives
of the selling Holders, attorney or accountant in
connection with
the Shelf Registration Statement after the filing thereof
and before its
effectiveness, provided, however, that any information
designated by
the Company as confidential at the time of delivery of such
information
shall be kept confidential by the recipient thereof.
(vi) If requested by any selling Holders as promptly as
practicable
incorporate in
the Shelf Registration Statement or Prospectus, pursuant to
a supplement or
post-effective amendment if necessary, such information as
such selling
Holders may reasonably request to have included therein,
including,
without limitation: (1) information relating to the "Plan of
Distribution" of
the Transfer Restricted Securities, (2) information with
respect to the
principal amount of Notes or number of Conversion Shares
being sold, (3)
the purchase price being paid therefor and (4) any other
terms of the
offering of the Transfer Restricted Securities to be sold in
such offering;
provided, however, that with respect to any information
requested for
inclusion by a selling Holder, this clause (vi) shall apply
only to
information that relates to the Transfer Restricted Securities
to
be sold by such
selling Holder; and make all required filings of such
Prospectus
supplement or post-effective amendment as soon as reasonably
practicable
after the Company is notified of the matters to be incorporated
in such
Prospectus supplement or post-effective amendment.
(vii) Furnish to each selling Holder without charge, at least one
copy
of the Shelf
Registration Statement, as first filed with the Commission,
and of each
amendment thereto (and any documents incorporated by reference
therein or
exhibits thereto (or exhibits incorporated in such exhibits by
reference) as
such Person may request).
(viii) Deliver to each selling Holder without charge, as many
copies
of the
Prospectus (including each preliminary prospectus) and any
amendment
or supplement
thereto as such Persons reasonably may request; subject to
any notice by
the Company in accordance with this Section 4(b) of the
existence of any
fact or event of the kind described in Section 4(b)(iii)
(D), the Company
hereby consents to the use of the Prospectus and any
amendment or
supplement thereto by each of the selling Holders in
connection with
the offering and the sale of the Transfer Restricted
Securities
covered by the Prospectus or any amendment or supplement
thereto.
(ix) The Company shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any,
in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings for selling
security
holders, upon the date of closing of any sale of Transfer
Restricted
Securities in an Underwritten Registration:
1. a
certificate, dated the date of such closing, signed by the
Chief Financial Officer of the Company confirming, as of the
date
thereof,
matters of the type set forth in Section 5(h) of the
Purchase Agreement and such other matters as such parties may
reasonably request;
2. opinions,
each dated the date of such closing, of counsel to the
Company covering such of the matters as are customarily covered
in legal opinions to underwriters in connection with
underwritten
offerings of securities; and
3. customary
comfort letters, dated the date of such closing, from
the Company's independent accountants in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings
of securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no
less
protective than those set forth in Section 6 hereof with respect
to
all parties to be indemnified; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance
with
clause (A) above and with any customary conditions contained in
the
underwriting agreement or other agreement entered into by the
selling
Holders pursuant to this clause (ix).
(x) Before any public offering of Transfer Restricted
Securities,
cooperate with
the selling Holders, and their respective counsel in
connection with
the registration and qualification of the Transfer
Restricted
Securities under the securities or Blue Sky laws of such
jurisdictions in
the United States as the selling Holders may reasonably
request and do
any and all other acts or things necessary or advisable to
enable the
disposition in such jurisdictions of the Transfer Restricted
Securities
covered by the Shelf Registration Statement; provided, however,
that the Company
shall not be required (A) to register or qualify as a
foreign
corporation or a dealer of securities where it is not now so
qualified or to
take any action that would subject it to the service of
process in any
jurisdiction where it is not now so subject or (B) to
subject itself
to taxation in any such jurisdiction if it is not now so
subject.
(xi) Cooperate with the selling Holders to facilitate the
timely
preparation and
delivery of certificates representing Transfer Restricted
Securities to be
sold and not bearing any restrictive legends (unless
required by
applicable securities laws); and enable such Transfer
Restricted
Securities to be in such denominations and registered in such
names as the
Holders may request at least two Business Days before any sale
of Transfer
Restricted Securities.
(xii) Use its commercially reasonable efforts to cause the
Transfer
Restricted
Securities covered by the Shelf Registration Statement to be
registered with
or approved by such other U.S. governmental agencies or
authorities as
may be necessary to enable the seller or sellers thereof to
consummate the
disposition of such Transfer Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by
Section 4(b)(iii)(D) hereof shall exist or have occurred,
to prepare a
supplement or post-effective amendment to the Shelf
Registration
Statement or related Prospectus or any document incorporated
therein by
reference or file any other required document so that, as
thereafter
delivered to the purchasers of Transfer Restricted Securities,
the Prospectus
will not contain an 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 light of the circumstances in which they
were made, not
misleading.
(xiv) Provide CUSIP numbers for all Transfer Restricted Securities
not
later than the
effective date of the Shelf Registration Statement and
provide the
Trustee under the Indenture with certificates for the Notes
that are in a
form eligible for deposit with The Depository Trust Company.
(xv) Cooperate and assist in any filings required to be made with
the
NASD and in the
performance of any due diligence investigation that is
requir
