Obligations of the Issuer. In connection with any Registration pursuant to Article IV or Incidental Registration in which the Stockholder is including Registrable Securities pursuant to Article V: (a) the Issuer shall (i) before filing a Registration Statement, Prospectus, Free Writing Prospectus or any amendments or supplements thereto, provide Stockholder Counsel and any other Inspector with a reasonable opportunity to review and comment on such Registration Statement, each Prospectus included therein and each Free Writing Prospectus (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Issuer’s control and (ii) notify the Stockholder, Stockholder Counsel, and each other party participating in such distribution of Registrable Securities of any stop order issued or threatened by the Commission and use commercially reasonable action required to prevent the entry of such stop order or to remove it if entered; (b) the Issuer shall, as promptly as practicable, prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus as may be necessary to keep such Registration Statement effective as required by Article IV of this Agreement and as required to remove, or prevent the issuance of, any stop order issued or threatened by the Commission; (c) the Issuer shall furnish to the Stockholder, prior to filing a Registration Statement, at least one conformed copy of such Registration Statement as is proposed to be filed, and thereafter shall promptly furnish such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the Prospectus included therein (including each preliminary Prospectus and any Prospectus filed under Rule 424 under the Securities Act) as the Stockholder may reasonably request in order to facilitate the disposition of the Registrable Securities; in addition, the Issuer shall promptly after receipt furnish to the Stockholder copies of the portions of any and all transmittal letters and any other correspondence (including comment letters) with the Commission or any other Governmental Entity in respect of such Registration Statement or amendment or supplement thereto and that relate to the sections entitled “Plan of Distribution” or “Selling Stockholder” or other sections containing information provided by the Stockholder pursuant to Section 6.2, and the Stockholder shall have the right to request that, subject to the terms of this Agreement, the Issuer modify any such information contained in such Registration Statement or amendment and supplement thereto pertaining to the Stockholder in such sections, and the Issuer shall use commercially reasonable efforts to comply with such request (provided, however, that the Issuer shall not have any obligation to modify any information if the Issuer reasonably expects that so doing would cause the Registration Statement to 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 not misleading); (d) the Issuer shall use commercially reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such other securities or “blue sky” laws of such States of the United States of America where an exemption is not available and as the Stockholder shall reasonably request, (ii) to keep such registration or qualification in effect during the period during which the Registration Statement is required to be effective pursuant to this Agreement, (iii) to obtain the withdrawal of any order or other determination suspending such registration or qualification during the period during which the Registration Statement is required to be effective pursuant to this Agreement and (iv) to take any other action which may be reasonably necessary or advisable to enable the Stockholder to consummate the Disposition of the relevant Registrable Securities in such jurisdictions, except that the Issuer shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction; (e) the Issuer shall enter into and perform customary agreements (including underwriting and indemnification and contribution agreements in customary form with the Managing Underwriters, Co-Managers or other Counterparty and reasonably acceptable to the Counterparty) and take such other commercially reasonable actions as are required in order to expedite or facilitate each Disposition (other than the Final Distribution or an Additional Disposition) and shall provide all reasonable cooperation, including causing appropriate officers to attend and participate in “road shows,” including other information meetings organized by the Counterparty, customary for similar dispositions; provided, however, that the Issuer and such officers shall not be obligated to attend or participate in more than one “road show” in connection with each such Disposition, unless such “road show” has been interrupted pursuant to Section 6.3, in which case such officers shall continue to be obligated to attend or participate in one more “road show”; (f) the Issuer shall make available at reasonable times for inspection by the Stockholder, the Counterparties participating in any Disposition (other than the Final Distribution or an Additional Disposition), Stockholder Counsel and any attorney, accountant or other agent retained by any Counterparty (each, an “Inspector” and collectively, the “Inspectors”), all financial and other records, corporate documents of the Issuer and its Subsidiaries (collectively, the “Records”) as are reasonably necessary to enable them to exercise their due diligence responsibilities, and cause the Issuer’s and its Subsidiaries’ officers, directors and employees, and the independent public accountants of the Issuer, to discuss the business and affairs of the Issuer and its Subsidiaries, to supply promptly all information reasonably requested by any such Inspector in connection with such Registration Statement and to otherwise reasonably cooperate in the due diligence process of the Inspectors; provided, however, that the Issuer shall be under no obligation to provide any information to the Stockholder, such Counterparties, Stockholder Counsel or any Inspector, and no such party shall have access to any information that (x) consists of the Tax Returns (as defined in the TW NY APA) of the Issuer or (y) based on advice of the Issuer’s counsel, would (i) reasonably be expected to create any Liability under applicable law, or waive any material legal privilege (provided that in such latter event the Issuer shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (ii) result in the disclosure of any trade secrets of third parties; or (iii) violate any obligation of the Issuer with respect to confidentiality (provided that, with respect to clause (iii), to the extent specifically requested by the Stockholder, the Issuer has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality); (g) in preparation for any Disposition (other than the Final Distribution or an Additional Disposition), the Issuer shall use commercially reasonable efforts to obtain “cold comfort” letters addressed to the Issuer and the Counterparties and dated the effective date of the Registration Statement and the date of the closing under the agreement relating to such Disposition from the Issuer’s independent public accountants, relating to the Issuer’s financial information, in customary form and covering such matters of the type customarily covered by “cold comfort” letters delivered in a firm-commitment underwritten public offering; (h) the Issuer shall use commercially reasonable efforts to furnish, at the request of the Stockholder, on the date such Registrable Securities are delivered to the Counterparties for sale pursuant to such Registration Statement (other than the Final Registration Statement or an Additional Registration Statement), a signed opinion, dated such date, of counsel representing the Issuer for the purposes of such Disposition (other than the Final Distribution or an Additional Disposition), addressed to the Counterparties, covering such legal matters with respect to such Disposition in respect of which such opinion is being given as the Counterparties and the Stockholder may reasonably request and are customarily included in such opinions relating to transactions similar to such Disposition; (i) the Issuer shall comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but no later than fifteen months after the effective date of the Registration Statement, an earnings statement covering a period of twelve months beginning after the effective date of the Registration Statement, in a manner that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (j) with respect to any Disposition or a distribution of Registrable Securities to the Adelphia Claimants pursuant to the Section 1145 Exemption, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the NYSE and to thereafter comply with all applicable rules of the NYSE, at or prior to the time of the relevant Disposition or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, so as to permit the continued listing of such securities on the NYSE, and if such listing on the NYSE has not been effected within a reasonable period of time following the first Disposition under this Agreement or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the Nasdaq Stock Market and thereafter shall use commercially reasonable efforts to comply with all applicable rules of the Nasdaq Stock Market so as to permit the continued listing of such securities on the Nasdaq Stock Market; (k) the Issuer shall use commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be registered with or approved by such Governmental Entities as may be necessary in the written opinion of counsel to the Issuer or Stockholder Counsel to enable the Stockholder to consummate the Disposition of such Registrable Securities within the United States of America; (l) the Issuer shall timely keep Stockholder Counsel advised as to the initiation and progress of any Registration or Incidental Registration; (m) the Issuer shall cooperate with the Stockholder and each underwriter participating in the Disposition (other than the Final Distribution or an Additional Disposition) of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD; (n) during the time when a Prospectus is required to be delivered under the Securities Act, the Issuer shall promptly give notice to the Stockholder (i) of the receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threat in writing of any proceeding for such purpose, (ii) of the occurrence of any of the events described in Section 6.3(b) that results in the Issuer delaying or not taking a Registration Action; and (iii) of the determination by the Issuer that a post-effective amendment to a Registration Statement will be filed with the Commission; and (o) the Issuer shall use commercially reasonable efforts to promptly take all other steps necessary to effect the registration of the Registrable Securities contemplated hereby.
Appears in 5 contracts
Samples: Asset Purchase Agreement (Time Warner Inc), Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Comcast Corp)
Obligations of the Issuer. In connection with any Registration Whenever registration of Registrable Securities has been requested pursuant to Article IV or Incidental Registration in which Article V, the Stockholder is including Issuer shall use all commercially reasonable efforts to effect the registration and sale of such Registrable Securities pursuant to Article Vin accordance with the intended method of distribution thereof as quickly as practicable, and in connection with any such request:
(a) the Issuer shall shall, as expeditiously as practicable, prepare and file with the Commission a Registration Statement on Form S-3 (or, if the Issuer is not then eligible to use Form S-3, on any form for which the Issuer then qualifies, which counsel for the Issuer deems appropriate and which is available for the sale of such Registrable Securities in accordance with the intended method of distribution thereof), and use all commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously as practicable; provided, however, that (i) before filing a Registration Statement, Prospectus, Free Writing Statement or Prospectus or any amendments or supplements thereto, the Issuer shall provide Stockholder Counsel and any other Inspector with a reasonable opportunity to review and comment on such Registration Statement, Statement and each Prospectus included therein and each Free Writing Prospectus (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Issuer’s control 's control, and (ii) the Issuer shall notify the each Stockholder, Stockholder Counsel, and each other party participating in such distribution of Registrable Securities of any stop order issued or threatened by the Commission and use take all commercially reasonable action required to prevent the entry of such stop order or to remove it if entered;
(b) the Issuer shall, as promptly expeditiously as practicable, prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus as may be necessary to keep such Registration Statement effective as required until the earlier of (i) the 75th day after the effective date thereof and (ii) the date on which all Registrable Securities covered by Article IV such Registration Statement have been sold (provided that such 75-day period shall be extended for a number of days equal to the number of days that elapse from (x) the date any written notice contemplated by Section 6.3(a) is given by the Issuer to (y) the date on which the Issuer delivers to the Stockholders the supplement or amendment contemplated by Section 6.3(a)); and the Issuer shall comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement; notwithstanding anything to the contrary in this Agreement and as Agreement, the Issuer shall not be required to removefile or have declared effective more than one post-effective amendment of any Registration Statement filed in response to a Demand Registration and shall not be required to file more than five supplements to the Prospectus contained in such Registration Statement, in each case, in connection with one or prevent more Hedging Transactions or changes to the issuance of, any stop order issued or threatened by the CommissionPlan of Distribution therein;
(c) the Issuer shall furnish to the Stockholdereach seller of Registrable Securities, prior to filing a Registration Statement, at least one conformed copy of such Registration Statement as is proposed to be filed, and thereafter shall promptly furnish such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the Prospectus included therein (including each preliminary Prospectus and any Prospectus filed under Rule 424 under the Securities Act) as the Stockholder each such seller may reasonably request in order to facilitate the disposition of the Registrable SecuritiesSecurities by such seller; in addition, the Issuer shall promptly after receipt furnish to the each Stockholder copies of the portions of any and all transmittal letters and any other correspondence (including including, but not limited to, comment letters) with the Commission or any other Governmental Entity in respect of relating to such Registration Statement or amendment or supplement thereto and that relate relating to the sections entitled “"Plan of Distribution” " or “"Selling Stockholder” or other sections containing information provided by the Stockholder pursuant to Section 6.2, Stockholders," and the Stockholder Majority Requesting Stockholders shall have the right to request that, subject to the terms of this Agreement, that the Issuer modify any such information contained in such Registration Statement or amendment and supplement thereto pertaining to the Stockholder such Stockholders in such sections, and the Issuer shall use all commercially reasonable efforts to comply with such request (request; provided, however, that the Issuer shall not have any obligation to modify any information if the Issuer reasonably expects that so doing would cause the Registration Statement to 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 not misleading);
(d) the Issuer shall use all commercially reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such States of the United States of America where an exemption is not available and as the Stockholder sellers of Registrable Securities covered by the Registration Statement shall reasonably request, (ii) to keep such registration or qualification in effect during the period during which the Registration Statement is required to be effective pursuant to this Agreementeffective, (iii) to obtain the withdrawal of any order or other determination suspending such registration or qualification during the period during which the Registration Statement is required to be effective pursuant to this Agreement and (iv) to take any other action which may be reasonably necessary or advisable to enable the Stockholder such sellers to consummate the Disposition disposition in such jurisdictions of the relevant Registrable Securities in securities to be sold by such jurisdictionssellers, except that the Issuer shall not for any such purpose be required to (A1) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B2) subject itself to taxation in any such jurisdiction or (C3) consent to general service of process in any such jurisdiction;
(e) the Issuer shall enter into and perform customary agreements (including underwriting and indemnification and contribution agreements in customary form with the Managing Underwriters, Co-Managers Lead Underwriter or other Counterparty and reasonably acceptable to the Counterparty) and take such other commercially reasonable actions as are required in order to expedite or facilitate each Disposition (other than the Final Distribution or an Additional Disposition) and shall provide all reasonable cooperation, including causing appropriate officers to attend and participate in “"road shows,” including " and other information meetings organized by the Counterparty, customary for similar dispositions; provided, however, that the Issuer and such officers shall not be obligated to attend or participate in more than one “road show” in connection with each such Disposition, unless such “road show” has been interrupted pursuant to Section 6.3, in which case such officers shall continue to be obligated to attend or participate in one more “road show”Dispositions;
(f) the Issuer shall make available at reasonable times for inspection by the Stockholderany seller of Registrable Securities, the Counterparties participating in any Disposition (other than the Final Distribution or an Additional Disposition), Stockholder Counsel and any attorney, accountant or other agent retained by any Counterparty (each, an “"Inspector” " and collectively, the “"Inspectors”"), all financial and other records, corporate documents of the Issuer and its Subsidiaries (collectively, the “"Records”") as are reasonably necessary to enable them to exercise their due diligence responsibilities, and cause the Issuer’s 's and its Subsidiaries’ ' officers, directors and employees, and the independent public accountants of the Issuer, to discuss the business and affairs of the Issuer and its Subsidiaries, to supply promptly all information reasonably requested by any such Inspector in connection with such Registration Statement and to otherwise reasonably cooperate in the due diligence process of the Inspectors; provided, however, that the Issuer shall be under no obligation to provide any information to the Stockholder, such Counterparties, Stockholder Counsel or any Inspector, and no such party shall have access to any information that (x) consists of the Tax Returns (as defined in the TW NY APA) of the Issuer or (y) based on advice of the Issuer’s counsel, would (i) reasonably be expected to create any Liability under applicable law, or waive any material legal privilege (provided that in such latter event the Issuer shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (ii) result in the disclosure of any trade secrets of third parties; or (iii) violate any obligation of the Issuer with respect to confidentiality (provided that, with respect to clause (iii), to the extent specifically requested by the Stockholder, the Issuer has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality);
(g) in preparation for any Disposition (other than the Final Distribution or an Additional case of a Disposition), the Issuer shall use all commercially reasonable efforts to obtain “"cold comfort” " letters addressed to the Issuer and the Counterparties and dated the effective date of the Registration Statement and the date of the closing under the agreement relating to such Disposition from the Issuer’s 's independent public accountants, relating to the Issuer’s financial information, accountants in customary form and covering such matters of the type customarily covered by “"cold comfort” " letters delivered in a firm-commitment underwritten public offeringunderwritings or under agreements that are customary or reasonably appropriate for the types of offerings that are most similar to such Disposition, as Stockholder Counsel or the Counterparty reasonably requests;
(h) the Issuer shall use all commercially reasonable efforts to furnish, at the request of the Stockholderany seller of Registrable Securities, on the date such Registrable Securities are delivered to the Counterparties for sale pursuant to such Registration Statement (other than or, if such Registrable Securities are not being sold through underwriters, on the Final date the Registration Statement or an Additional Registration Statement)with respect to such Registrable Securities becomes effective, a signed opinion, dated such date, of counsel representing the Issuer for the purposes of such Disposition (other than the Final Distribution or an Additional Disposition), addressed to the Counterparties, if any, covering such legal matters with respect to such the Disposition in respect of which such opinion is being given as the Counterparties Counterparties, if any, and the Stockholder such seller may reasonably request and are customarily included in such opinions relating to transactions similar to such Disposition;
(i) the Issuer shall comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but no later than fifteen 15 months after the effective date of the Registration Statement, an earnings statement covering a period of twelve 12 months beginning after the effective date of the Registration Statement, in a manner that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(j) with respect to any Disposition or a distribution of Registrable Securities to the Adelphia Claimants pursuant to the Section 1145 Exemption, the Issuer shall use all commercially reasonable efforts to cause all Purchase Shares such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the NYSE Issuer are then listed (and if no such securities are then listed on any securities exchange, on a national securities exchange or automated quotation system selected by the Issuer) and to thereafter comply with all applicable rules of the NYSE, at such securities exchange or prior to the time of the relevant Disposition or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, automated quotation system so as to permit the continued listing of such securities on the NYSE, and if such listing on the NYSE has not been effected within a reasonable period of time following the first Disposition under this Agreement exchange or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the Nasdaq Stock Market and thereafter shall use commercially reasonable efforts to comply with all applicable rules of the Nasdaq Stock Market so as to permit the continued listing of such securities on the Nasdaq Stock Marketautomated quotation system;
(k) the Issuer shall use all commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be registered with or approved by such Governmental Entities as may be necessary in the written opinion of counsel to the Issuer and counsel to the seller or Stockholder Counsel sellers of Registrable Securities to enable the Stockholder seller or sellers thereof to consummate the Disposition disposition of such Registrable Securities within the United States of America;
(l) the Issuer shall cooperate with each seller of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to a Registration Statement, and provide the transfer agent for the Registrable Securities with certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company;
(m) the Issuer shall timely keep Stockholder Counsel advised in writing as to the initiation and progress of any Registration registration under Article IV or Incidental RegistrationArticle V hereunder;
(mn) the Issuer shall cooperate with the Stockholder each seller of Registrable Securities and each underwriter participating in the Disposition (other than the Final Distribution or an Additional Disposition) disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(no) during the time when a Prospectus is required to be delivered under the Securities Act, the Issuer shall promptly give notice to the Stockholder all Stockholders selling securities pursuant to such Prospectus (i) of the receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threat in writing of any proceeding for such purpose, (ii) of the occurrence of any of the events described in Section 6.3(b) (provided, however, that no notice by the Issuer shall be required pursuant to this clause (ii) in the event that the Issuer either promptly files a Prospectus supplement or amendment to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which, in either case, contains the requisite information with respect to such event that results in the Issuer delaying Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements contained therein not taking a Registration Action; misleading) and (iii) of the determination by the Issuer that a post-effective amendment to a Registration Statement will be filed with the Commission;
(p) if the Issuer files a Registration Statement on Form S-3, and one or more Stockholders request to have an offering of Registrable Securities registered under such Registration Statement pursuant to Article IV or V hereof, the Issuer shall use all commercially reasonable efforts to include in such Registration Statement such additional information for marketing purposes as the Lead Underwriter with respect to such offering reasonably requests; provided, however, that, if such additional information is included in such Registration Statement, the time period for having such Registration Statement declared effective pursuant to clause (ii)(2) of Section 4.2 shall be no more than 120 days and the Issuer shall use all commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as is practicable; and
(oq) the Issuer shall use all commercially reasonable efforts to promptly take all other steps necessary to effect the registration and sale of the Registrable Securities contemplated hereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Aol Time Warner Inc), Registration Rights Agreement (Aol Time Warner Inc)
Obligations of the Issuer. In connection with any Registration Whenever registration of Registrable Securities has been requested pursuant to Article IV or Incidental Registration in which Article V, the Stockholder is including Issuer shall use all commercially reasonable efforts to effect the registration and sale of such Registrable Securities pursuant to Article Vin accordance with the intended method of distribution thereof as quickly as practicable, and in connection with any such request:
(a) the Issuer shall shall, as expeditiously as practicable, prepare and file with the Commission a Registration Statement on Form S-3 (or, if the Issuer is not then eligible to use Form S-3, on any form for which the Issuer then qualifies, which counsel for the Issuer deems appropriate and which is available for the sale of such Registrable Securities in accordance with the intended method of distribution thereof), and use all commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously as practicable; provided, however, that (i) before filing a Registration Statement, Prospectus, Free Writing Statement or Prospectus or any amendments or supplements thereto, the Issuer shall provide Stockholder Counsel and any other Inspector with a reasonable opportunity to review and comment on such Registration Statement, Statement and each Prospectus included therein and each Free Writing Prospectus (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Issuer’s control 's control, and (ii) the Issuer shall notify the each Stockholder, Stockholder Counsel, and each other party participating in such distribution of Registrable Securities of any stop order issued or threatened by the Commission and use take all commercially reasonable action required to prevent the entry of such stop order or to remove it if entered;
(b) the Issuer shall, as promptly expeditiously as practicable, prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus as may be necessary to keep such Registration Statement effective until the earlier of (i) the 75th day after the effective date thereof (or such later date as required the Majority Requesting Stockholders request in writing) and (ii) the date on which all Registrable Securities covered by Article IV such Registration Statement have been sold (provided that such 75-day period shall be extended for a number of this Agreement and as required days equal to remove, or prevent the issuance of, number of days that elapse from (x) the date any stop order issued or threatened written notice contemplated by Section 6.3(a) is given by the CommissionIssuer to (y) the date on which the Issuer delivers to the Stockholders the supplement or amendment contemplated by Section 6.3(a)); and the Issuer shall comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;
(c) the Issuer shall furnish to the Stockholdereach seller of Registrable Securities, prior to filing a Registration Statement, at least one conformed copy of such Registration Statement as is proposed to be filed, and thereafter shall promptly furnish such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the Prospectus included therein (including each preliminary Prospectus and any Prospectus filed under Rule 424 under the Securities Act) as the Stockholder each such seller may reasonably request in order to facilitate the disposition of the Registrable SecuritiesSecurities by such seller; in addition, the Issuer shall promptly after receipt furnish to the each Stockholder copies of the portions of any and all transmittal letters and any other correspondence (including including, but not limited to, comment letters) with the Commission or any other Governmental Entity in respect of relating to such Registration Statement or amendment or supplement thereto and that relate relating to the sections entitled “"Plan of Distribution” " or “"Selling Stockholder” or other sections containing information provided by the Stockholder pursuant to Section 6.2, Stockholders," and the Stockholder Majority Requesting Stockholders shall have the right to request that, subject to the terms of this Agreement, that the Issuer modify any such information contained in such Registration Statement or amendment and supplement thereto pertaining to the Stockholder such Stockholders in such sections, and the Issuer shall use all commercially reasonable efforts to comply with such request (request; provided, however, that the Issuer shall not have any obligation to modify any information if the Issuer reasonably expects that so doing would cause the Registration Statement to 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 not misleading);
(d) the Issuer shall use all commercially reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such States of the United States of America where an exemption is not available and as the Stockholder sellers of Registrable Securities covered by the Registration Statement shall reasonably request, (ii) to keep such registration or qualification in effect during the period during which the Registration Statement is required to be effective pursuant to this Agreementeffective, (iii) to obtain the withdrawal of any order or other determination suspending such registration or qualification during the period during which the Registration Statement is required to be effective pursuant to this Agreement and (iv) to take any other action which may be reasonably necessary or advisable to enable the Stockholder such sellers to consummate the Disposition disposition in such jurisdictions of the relevant Registrable Securities in securities to be sold by such jurisdictionssellers, except that the Issuer shall not for any such purpose be required to (A1) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B2) subject itself to taxation in any such jurisdiction or (C3) consent to general service of process in any such jurisdiction;
(e) the Issuer shall enter into and perform customary agreements (including underwriting and indemnification and contribution agreements in customary form with the Managing Underwriters, Co-Managers Lead Underwriter or other Counterparty and reasonably acceptable to the Counterparty) and take such other commercially reasonable actions as are required in order to expedite or facilitate each Disposition (other than the Final Distribution or an Additional Disposition) and shall provide all reasonable cooperation, including causing appropriate officers to attend and participate in “"road shows,” including " and other information meetings organized by the Counterparty, customary for similar dispositions; provided, however, that the Issuer and such officers shall not be obligated to attend or participate in more than one “road show” in connection with each such Disposition, unless such “road show” has been interrupted pursuant to Section 6.3, in which case such officers shall continue to be obligated to attend or participate in one more “road show”Dispositions;
(f) the Issuer shall make available at reasonable times for inspection by the Stockholderany seller of Registrable Securities, the Counterparties participating in any Disposition (other than the Final Distribution or an Additional Disposition), Stockholder Counsel and any attorney, accountant or other agent retained by any Counterparty (each, an “"Inspector” " and collectively, the “"Inspectors”"), all financial and other records, corporate documents of the Issuer and its Subsidiaries (collectively, the “"Records”") as are reasonably necessary to enable them to exercise their due diligence responsibilities, and cause the Issuer’s 's and its Subsidiaries’ ' officers, directors and employees, and the independent public accountants of the Issuer, to discuss the business and affairs of the Issuer and its Subsidiaries, to supply promptly all information reasonably requested by any such Inspector in connection with such Registration Statement and to otherwise reasonably cooperate in the due diligence process of the Inspectors; provided, however, that the Issuer shall be under no obligation to provide any information to the Stockholder, such Counterparties, Stockholder Counsel or any Inspector, and no such party shall have access to any information that (x) consists of the Tax Returns (as defined in the TW NY APA) of the Issuer or (y) based on advice of the Issuer’s counsel, would (i) reasonably be expected to create any Liability under applicable law, or waive any material legal privilege (provided that in such latter event the Issuer shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (ii) result in the disclosure of any trade secrets of third parties; or (iii) violate any obligation of the Issuer with respect to confidentiality (provided that, with respect to clause (iii), to the extent specifically requested by the Stockholder, the Issuer has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality);
(g) in preparation for any Disposition (other than the Final Distribution or an Additional case of a Disposition), the Issuer shall use all commercially reasonable efforts to obtain “"cold comfort” " letters addressed to the Issuer and the Counterparties and dated the effective date of the Registration Statement and the date of the closing under the agreement relating to such Disposition from the Issuer’s 's independent public accountants, relating to the Issuer’s financial information, accountants in customary form and covering such matters of the type customarily covered by “"cold comfort” " letters delivered in a firm-commitment underwritten public offeringagreements that are customary or reasonably appropriate for the types of offerings that are most similar to such Disposition, as Stockholder Counsel or the Counterparty reasonably requests;
(h) the Issuer shall use all commercially reasonable efforts to furnish, at the request of the Stockholderany seller of Registrable Securities, on the date such Registrable Securities are delivered to the Counterparties for sale pursuant to such Registration Statement (other than or, if such Registrable Securities are not being sold through underwriters, on the Final date the Registration Statement or an Additional Registration Statement)with respect to such Registrable Securities becomes effective, a signed opinion, dated such date, of counsel representing the Issuer for the purposes of such Disposition (other than the Final Distribution or an Additional Disposition), addressed to the Counterparties, if any, covering such legal matters with respect to such the Disposition in respect of which such opinion is being given as the Counterparties Counterparties, if any, and the Stockholder such seller may reasonably request and are customarily included in such opinions relating to transactions similar to such Disposition;
(i) the Issuer shall comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but no later than fifteen 15 months after the effective date of the Registration Statement, an earnings statement covering a period of twelve 12 months beginning after the effective date of the Registration Statement, in a manner that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(j) with respect to any Disposition or a distribution of Registrable Securities to the Adelphia Claimants pursuant to the Section 1145 Exemption, the Issuer shall use all commercially reasonable efforts to cause all Purchase Shares such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the NYSE Issuer are then listed (and if no such securities are then listed on any securities exchange, on a national securities exchange or automated quotation system selected by the Issuer) and to thereafter comply with all applicable rules of the NYSE, at such securities exchange or prior to the time of the relevant Disposition or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, automated quotation system so as to permit the continued listing of such securities on the NYSE, and if such listing on the NYSE has not been effected within a reasonable period of time following the first Disposition under this Agreement exchange or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the Nasdaq Stock Market and thereafter shall use commercially reasonable efforts to comply with all applicable rules of the Nasdaq Stock Market so as to permit the continued listing of such securities on the Nasdaq Stock Marketautomated quotation system;
(k) the Issuer shall use all commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be registered with or approved by such Governmental Entities as may be necessary in the written opinion of counsel to the Issuer and counsel to the seller or Stockholder Counsel sellers of Registrable Securities to enable the Stockholder seller or sellers thereof to consummate the Disposition disposition of such Registrable Securities within the United States of America;
(l) the Issuer shall cooperate with each seller of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to a Registration Statement, and provide the transfer agent for the Registrable Securities with certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company;
(m) the Issuer shall timely keep Stockholder Counsel advised in writing as to the initiation and progress of any Registration registration under Article IV or Incidental RegistrationArticle V hereunder;
(mn) the Issuer shall cooperate with the Stockholder each seller of Registrable Securities and each underwriter participating in the Disposition (other than the Final Distribution or an Additional Disposition) disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(no) during the time when a Prospectus is required to be delivered under the Securities Act, the Issuer shall promptly give notice to the Stockholder all Stockholders selling securities pursuant to such Prospectus (i) of the receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threat in writing of any proceeding for such purpose, (ii) of the occurrence of any of the events described in Section 6.3(b) (provided, however, that no notice by the Issuer shall be required pursuant to this clause (ii) in the event that the Issuer either promptly files a Prospectus supplement or amendment to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which, in either case, contains the requisite information with respect to such event that results in the Issuer delaying Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements contained therein not taking a Registration Action; misleading) and (iii) of the determination by the Issuer that a post-effective amendment to a Registration Statement will be filed with the Commission;
(p) if the Issuer files a Registration Statement on Form S-3, and one or more Stockholders request to have an offering of Registrable Securities registered under such Registration Statement pursuant to Article IV or V hereof, the Issuer shall use all commercially reasonable efforts to include in such Registration Statement such additional information for marketing purposes as the Lead Underwriter with respect to such offering reasonably requests; provided, however, that, if such additional information is included in such Registration Statement, the time period for having such Registration Statement declared effective pursuant to clause (ii)(2) of Section 4.2 shall be no more than 120 days and the Issuer shall use all commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as is practicable; and
(oq) the Issuer shall use all commercially reasonable efforts to promptly take all other steps necessary to effect the registration and sale of the Registrable Securities contemplated hereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Aol Time Warner Inc), Registration Rights Agreement (Aol Time Warner Inc)
Obligations of the Issuer. In connection with any Registration pursuant 1.1 On the Closing Date, the Issuer shall deliver to Article IV or Incidental Registration in which the Stockholder is including Registrable Securities pursuant to Article VSubscriber:
(a) one or more share certificate(s) representing the Subscription Shares and a copy of the updated register of members of the Issuer reflecting the Subscriber or its nominee as the owner of the Subscription Shares, which shall (i) before filing be certified by a Registration Statement, Prospectus, Free Writing Prospectus Director or any amendments or supplements thereto, provide Stockholder Counsel and any other Inspector with a reasonable opportunity to review and comment on such Registration Statement, each Prospectus included therein and each Free Writing Prospectus (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under registered agent of the Issuer’s control and (ii) notify the Stockholder, Stockholder Counsel, and each other party participating in such distribution of Registrable Securities of any stop order issued or threatened by the Commission and use commercially reasonable action required to prevent the entry of such stop order or to remove it if entered;
(b) the Issuer shall, as promptly as practicable, prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus as may be necessary to keep such Registration Statement effective as required by Article IV of this Agreement and as required to remove, or prevent the issuance of, any stop order issued or threatened by the Commission;
(c) the Issuer shall furnish to the Stockholder, prior to filing a Registration Statement, at least one conformed copy of such Registration Statement as is proposed to be filed, and thereafter shall promptly furnish such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the Prospectus included therein (including each preliminary Prospectus and any Prospectus filed under Rule 424 under the Securities Act) as the Stockholder may reasonably request in order to facilitate the disposition resolutions of the Registrable Securities; in additionBoard, the Issuer shall promptly after receipt furnish to the Stockholder copies of the portions of any and all transmittal letters and any other correspondence (including comment letters) with the Commission or any other Governmental Entity in respect of such Registration Statement or amendment or supplement thereto and that relate to the sections entitled “Plan of Distribution” or “Selling Stockholder” or other sections containing information provided by the Stockholder pursuant to Section 6.2, and the Stockholder shall have the right to request that, subject to the terms of this Agreement, the Issuer modify any such information contained in such Registration Statement or amendment and supplement thereto pertaining to the Stockholder in such sections, and the Issuer shall use commercially reasonable efforts to comply with such request (provided, however, that the Issuer shall not have any obligation to modify any information if the Issuer reasonably expects that so doing would cause the Registration Statement to 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 not misleading);
(d) the Issuer shall use commercially reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such other securities or “blue sky” laws of such States of the United States of America where an exemption is not available and as the Stockholder shall reasonably request, (ii) to keep such registration or qualification in effect during the period during which the Registration Statement is required to be effective pursuant to this Agreement, (iii) to obtain the withdrawal of any order or other determination suspending such registration or qualification during the period during which the Registration Statement is required to be effective pursuant to this Agreement and (iv) to take any other action which may be reasonably necessary or advisable to enable the Stockholder to consummate the Disposition of the relevant Registrable Securities in such jurisdictions, except that the Issuer shall not for any such purpose be required to (A) qualify generally to do business certified as a foreign corporation in any jurisdiction wherein it would not but for true copy by a Director or the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction;
(e) the Issuer shall enter into and perform customary agreements (including underwriting and indemnification and contribution agreements in customary form with the Managing Underwriters, Co-Managers or other Counterparty and reasonably acceptable to the Counterparty) and take such other commercially reasonable actions as are required in order to expedite or facilitate each Disposition (other than the Final Distribution or an Additional Disposition) and shall provide all reasonable cooperation, including causing appropriate officers to attend and participate in “road shows,” including other information meetings organized by the Counterparty, customary for similar dispositions; provided, however, that the Issuer and such officers shall not be obligated to attend or participate in more than one “road show” in connection with each such Disposition, unless such “road show” has been interrupted pursuant to Section 6.3, in which case such officers shall continue to be obligated to attend or participate in one more “road show”;
(f) the Issuer shall make available at reasonable times for inspection by the Stockholder, the Counterparties participating in any Disposition (other than the Final Distribution or an Additional Disposition), Stockholder Counsel and any attorney, accountant or other agent retained by any Counterparty (each, an “Inspector” and collectively, the “Inspectors”), all financial and other records, corporate documents of the Issuer and its Subsidiaries (collectively, the “Records”) as are reasonably necessary to enable them to exercise their due diligence responsibilities, and cause the Issuer’s and its Subsidiaries’ officers, directors and employees, and the independent public accountants company secretary of the Issuer, approving and authorising, among other matters:
(i) the execution and performance of the Transaction Documents and the consummation of transactions contemplated under this Agreement;
(ii) issuance of the Subscription Shares to discuss the business and affairs Subscriber or its nominee;
(iii) the entry of the name of the Subscriber or its nominee into the register of members of the Issuer and its Subsidiaries, to supply promptly all information reasonably requested by any such Inspector in connection with such Registration Statement and to otherwise reasonably cooperate in as the due diligence process holder of the Inspectors; provided, however, that the Issuer shall be under no obligation to provide any information to the Stockholder, such Counterparties, Stockholder Counsel or any Inspector, and no such party shall have access to any information that (x) consists of the Tax Returns (as defined in the TW NY APA) of the Issuer or (y) based on advice of the Issuer’s counsel, would (i) reasonably be expected to create any Liability under applicable law, or waive any material legal privilege (provided that in such latter event the Issuer shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (ii) result in the disclosure of any trade secrets of third parties; or (iii) violate any obligation of the Issuer with respect to confidentiality (provided that, with respect to clause (iii), to the extent specifically requested by the Stockholder, the Issuer has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality)Subscription Shares;
(giv) in preparation for any Disposition (other than with effect from the Final Distribution or an Additional Disposition)Closing Date, the Issuer shall use commercially reasonable efforts resignation of the Resigning Directors; and
(v) with effect from the Closing Date, subject to obtain “cold comfort” letters addressed to compliance with the Issuer procedural formalities required under the Companies Ordinance and the Counterparties and dated Listing Rules, the effective date appointment of the Registration Statement and individual(s) designated by the date Subscriber as the authorised representatives of the closing under the agreement relating to such Disposition from the Issuer’s independent public accountants, relating to the Issuer’s financial information, in customary form and covering such matters of the type customarily covered by “cold comfort” letters delivered in a firm-commitment underwritten public offering;
(h) the Issuer shall use commercially reasonable efforts to furnish, at the request of the Stockholder, on the date such Registrable Securities are delivered to the Counterparties for sale pursuant to such Registration Statement (other than the Final Registration Statement or an Additional Registration Statement), a signed opinion, dated such date, of counsel representing the Issuer for the purposes of such Disposition (other than the Final Distribution or an Additional Disposition), addressed to the Counterparties, covering such legal matters with respect to such Disposition in respect of which such opinion is being given as the Counterparties Companies Ordinance and the Stockholder may reasonably request and are customarily included in such opinions relating to transactions similar to such DispositionListing Rules;
(ic) the Issuer shall comply with all applicable rules and regulations a copy of the Commissionletter from the Stock Exchange confirming that the Listing Committee of the Stock Exchange has granted the approval for the listing of, and make available permission to its security holdersdeal in, as soon as reasonably practicable but no later than fifteen months after the effective date of the Registration Statement, an earnings statement covering a period of twelve months beginning after the effective date of the Registration Statement, in a manner that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderSubscription Shares;
(jd) with respect to any Disposition or a distribution of Registrable Securities to the Adelphia Claimants pursuant to the Section 1145 Exemption, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the NYSE and to thereafter comply with all applicable rules copy of the NYSE, at or prior to the time of Whitewash Waiver (unless the relevant Disposition or completion of Conditions Precedent is waived by the distribution pursuant to the Section 1145 Exemption, as the case may be, so as to permit the continued listing of such securities on the NYSE, and if such listing on the NYSE has not been effected within a reasonable period of time following the first Disposition under this Agreement or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the Nasdaq Stock Market and thereafter shall use commercially reasonable efforts to comply with all applicable rules of the Nasdaq Stock Market so as to permit the continued listing of such securities on the Nasdaq Stock MarketSubscriber);
(ke) a copy of the Issuer shall use commercially reasonable efforts to cause all Registrable Securities covered resignation letter duly executed by each of the Registration Statement to be registered with or approved by such Governmental Entities as may be necessary in the written opinion of counsel to the Issuer or Stockholder Counsel to enable the Stockholder to consummate the Disposition of such Registrable Securities within the United States of AmericaResigning Directors;
(lf) written confirmations from the Issuer shall timely keep Stockholder Counsel advised relevant banks confirming that an individual designated by the Subscriber has been added as a mandatory co-signatory to the initiation and progress bank accounts opened with such banks through which the proceeds of any Registration or Incidental Registration;
(m) the Issuer shall cooperate with Subscription will be held, such that the Stockholder and each underwriter participating in the Disposition (other than the Final Distribution or an Additional Disposition) authorisation of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(n) during the time when a Prospectus is required to be delivered under the Securities Act, the Issuer shall promptly give notice to the Stockholder (i) of the receipt co-signatory designated by the Issuer Subscriber must be obtained for all payments out of any notification such bank accounts with respect to effect from the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threat in writing of any proceeding for such purpose, (ii) of the occurrence of any of the events described in Section 6.3(b) that results in the Issuer delaying or not taking a Registration Action; and (iii) of the determination by the Issuer that a post-effective amendment to a Registration Statement will be filed with the CommissionClosing Date; and
(og) a closing certificate dated the Closing Date and addressed to the Subscriber, signed by a Director or duly authorised signatory on behalf of the Issuer shall use commercially reasonable efforts to promptly take all other steps necessary to effect and substantially in the registration of the Registrable Securities contemplated herebyform set out in Schedule 3.
Appears in 1 contract
Samples: Subscription Agreement
Obligations of the Issuer. In connection with any Registration Whenever required pursuant to Article IV Subsection 2.1 or Incidental Registration in which Subsection 2.2 to effect the Stockholder is including registration of any Registrable Securities pursuant to Article VSecurities, the Issuer shall, as expeditiously as reasonably possible:
(a) the Issuer shall (i) before filing a Registration Statement, Prospectus, Free Writing Prospectus or any amendments or supplements thereto, provide Stockholder Counsel prepare and any other Inspector with a reasonable opportunity to review and comment on such Registration Statement, each Prospectus included therein and each Free Writing Prospectus (and each amendment or supplement thereto) to be filed file with the Commission, subject SEC a registration statement with respect to such documents being under the Issuer’s control Registrable Securities and (ii) notify the Stockholder, Stockholder Counseluse its best efforts to cause such registration statement to become effective, and each other party participating keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that such 120-day period shall be extended for a period of time equal to the period any Seller refrains from selling any securities included in such distribution registration at the request of an underwriter of Registrable Securities of any stop order issued or threatened by the Commission and use commercially reasonable action required to prevent the entry of such stop order or to remove it if enteredIssuer;
(b) the Issuer shall, as promptly as practicable, prepare and file with the Commission SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection with such registration statement as may be necessary to keep comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement effective as required by Article IV of this Agreement and as required to remove, or prevent the issuance of, any stop order issued or threatened by the Commissionregistration statement;
(c) the Issuer shall furnish to the Stockholder, prior to filing a Registration Statement, at least one conformed copy Sellers such numbers of such Registration Statement as is proposed to be filed, and thereafter shall promptly furnish such number of conformed copies of such Registration Statementa prospectus, each amendment and supplement thereto (including a preliminary prospectus, in each case including all exhibits thereto), and conformity with the Prospectus included therein (including each preliminary Prospectus and any Prospectus filed under Rule 424 under requirements of the Securities Act) , and such other documents as the Stockholder they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;
(d) use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such other United States jurisdictions as shall be reasonably requested by the Sellers;
(e) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering;
(f) cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange and trading system or quotation service, as the case may be, on which similar securities issued by the Issuer are then listed;
(g) provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities; , in additioneach case not later than the effective date of such registration;
(h) use its best efforts to furnish, at the request of the Sellers requesting registration of Registrable Securities pursuant to this Section 2, on the date on which such Registrable Securities are sold to the underwriter:
(i) an opinion, dated such date, of the counsel representing the Issuer shall promptly after receipt furnish for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the Stockholder copies underwriters, if any; and
(ii) a “comfort” letter dated such date, from the independent certified public accountants of the portions Issuer, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any.
(i) notify the Sellers with respect to any Registrable Securities covered by a registration statement obtained pursuant to exercise by the Sellers of the Registration Rights:
(i) when such registration statement, or any post-effective amendment thereto, shall have become effective or a supplement to any prospectus forming a part of such registration statement has been filed;
(ii) of the receipt of any and all transmittal letters and any other correspondence comments from the SEC;
(including comment lettersiii) with of the Commission issuance by the SEC or any other Governmental Entity in respect federal or state governmental authority of any stop order suspending the effectiveness of such Registration Statement registration statement or amendment or supplement the initiation of proceedings for that purpose; and
(iv) at any time when a prospectus relating thereto and that relate is required to be delivered under the sections entitled “Plan Securities Act of Distribution” or “Selling Stockholder” or other sections containing information provided by the Stockholder pursuant to Section 6.2, and happening of any event as a result of which the Stockholder shall have the right to request that, subject to the terms of this Agreement, the Issuer modify any such information contained prospectus included in such Registration Statement or amendment and supplement thereto pertaining to the Stockholder registration statement, as then in such sectionseffect, and the Issuer shall use commercially reasonable efforts to comply with such request (provided, however, that the Issuer shall not have any obligation to modify any information if the Issuer reasonably expects that so doing would cause the Registration Statement to contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading);
(d) misleading in the Issuer shall use commercially reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such other securities or “blue sky” laws of such States light of the United States of America where an exemption is not available and as the Stockholder shall reasonably requestcircumstances then existing, (ii) to keep such registration or qualification in effect during the period during which the Registration Statement is required to be effective pursuant to this Agreement, (iii) to obtain the withdrawal of any order or other determination suspending such registration or qualification during the period during which the Registration Statement is required to be effective pursuant to this Agreement and (iv) to take any other action which may be reasonably necessary or advisable to enable the Stockholder to consummate the Disposition of the relevant Registrable Securities in such jurisdictions, except that the Issuer shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction;
(e) the Issuer shall enter into and perform customary agreements (including underwriting and indemnification and contribution agreements in customary form with the Managing Underwriters, Co-Managers or other Counterparty and reasonably acceptable to the Counterparty) and take such other commercially reasonable actions as are required in order to expedite or facilitate each Disposition (other than the Final Distribution or an Additional Disposition) and shall provide all reasonable cooperation, including causing appropriate officers to attend and participate in “road shows,” including other information meetings organized by the Counterparty, customary for similar dispositions; provided, however, that the Issuer and such officers shall not be obligated to attend or participate in more than one “road show” in connection with each such Disposition, unless such “road show” has been interrupted pursuant to Section 6.3, in which case such officers shall continue to be obligated to attend or participate in one more “road show”;
(f) the Issuer shall make available at reasonable times for inspection by the Stockholder, the Counterparties participating in any Disposition (other than the Final Distribution or an Additional Disposition), Stockholder Counsel and any attorney, accountant or other agent retained by any Counterparty (each, an “Inspector” and collectively, the “Inspectors”), all financial and other records, corporate documents of the Issuer and its Subsidiaries (collectively, the “Records”) as are reasonably necessary to enable them to exercise their due diligence responsibilities, and cause the Issuer’s and its Subsidiaries’ officers, directors and employees, and the independent public accountants of the Issuer, to discuss the business and affairs of the Issuer and its Subsidiaries, to supply promptly all information reasonably requested by any such Inspector in connection with such Registration Statement and to otherwise reasonably cooperate in the due diligence process of the Inspectors; provided, however, that the Issuer shall be under no obligation to provide any information to the Stockholder, continue for one hundred eighty (180) days or such Counterparties, Stockholder Counsel or any Inspector, and no such party shall have access to any information that (x) consists of the Tax Returns (as defined in the TW NY APA) of the Issuer or (y) based on advice of the Issuer’s counsel, would (i) reasonably be expected to create any Liability under applicable law, or waive any material legal privilege (provided that in such latter event the Issuer shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (ii) result in the disclosure of any trade secrets of third parties; or (iii) violate any obligation of the Issuer with respect to confidentiality (provided that, with respect to clause (iii), to the extent specifically requested by the Stockholder, the Issuer has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality);
(g) in preparation for any Disposition (other than the Final Distribution or an Additional Disposition), the Issuer shall use commercially reasonable efforts to obtain “cold comfort” letters addressed to the Issuer and the Counterparties and dated the effective date of the Registration Statement and the date of the closing under the agreement relating to such Disposition from the Issuer’s independent public accountants, relating to the Issuer’s financial information, in customary form and covering such matters of the type customarily covered by “cold comfort” letters delivered in a firm-commitment underwritten public offering;
(h) the Issuer shall use commercially reasonable efforts to furnish, at the request of the Stockholder, on the date lesser period until all such Registrable Securities are delivered to the Counterparties for sale pursuant to such Registration Statement (other than the Final Registration Statement or an Additional Registration Statement), a signed opinion, dated such date, of counsel representing the Issuer for the purposes of such Disposition (other than the Final Distribution or an Additional Disposition), addressed to the Counterparties, covering such legal matters with respect to such Disposition in respect of which such opinion is being given as the Counterparties and the Stockholder may reasonably request and are customarily included in such opinions relating to transactions similar to such Disposition;
(i) the Issuer shall comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but no later than fifteen months after the effective date of the Registration Statement, an earnings statement covering a period of twelve months beginning after the effective date of the Registration Statement, in a manner that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(j) with respect to any Disposition or a distribution of Registrable Securities to the Adelphia Claimants pursuant to the Section 1145 Exemption, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the NYSE and to thereafter comply with all applicable rules of the NYSE, at or prior to the time of the relevant Disposition or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, so as to permit the continued listing of such securities on the NYSE, and if such listing on the NYSE has not been effected within a reasonable period of time following the first Disposition under this Agreement or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the Nasdaq Stock Market and thereafter shall use commercially reasonable efforts to comply with all applicable rules of the Nasdaq Stock Market so as to permit the continued listing of such securities on the Nasdaq Stock Market;
(k) the Issuer shall use commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be registered with or approved by such Governmental Entities as may be necessary in the written opinion of counsel to the Issuer or Stockholder Counsel to enable the Stockholder to consummate the Disposition of such Registrable Securities within the United States of America;
(l) the Issuer shall timely keep Stockholder Counsel advised as to the initiation and progress of any Registration or Incidental Registration;
(m) the Issuer shall cooperate with the Stockholder and each underwriter participating in the Disposition (other than the Final Distribution or an Additional Disposition) of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(n) during the time when a Prospectus is required to be delivered under the Securities Act, the Issuer shall promptly give notice to the Stockholder (i) of the receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threat in writing of any proceeding for such purpose, (ii) of the occurrence of any of the events described in Section 6.3(b) that results in the Issuer delaying or not taking a Registration Action; and (iii) of the determination by the Issuer that a post-effective amendment to a Registration Statement will be filed with the Commission; and
(o) the Issuer shall use commercially reasonable efforts to promptly take all other steps necessary to effect the registration of the Registrable Securities contemplated herebysold.
Appears in 1 contract
Samples: Registration Rights Agreement (Imarx Therapeutics Inc)
Obligations of the Issuer. In connection with any Registration pursuant to Article IV or Incidental Registration in which the Stockholder is including Registrable Securities pursuant to Article V:
(a) the Issuer shall (i) before filing a Registration Statement, Prospectus, Free Writing Prospectus or any amendments or supplements thereto, provide Stockholder Counsel and any other Inspector with a reasonable opportunity to review and comment on such Registration Statement, each Prospectus included therein and each Free Writing Prospectus (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Issuer’s control and (ii) notify the Stockholder, Stockholder Counsel, and each other party participating in such distribution of Registrable Securities of any stop order issued or threatened by the Commission and use commercially reasonable action required to prevent the entry of such stop order or to remove it if entered;
(b) the Issuer shall, as promptly as practicable, prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus as may be necessary to keep such Registration Statement effective as required by Article IV of this Agreement and as required to remove, or prevent the issuance of, any stop order issued or threatened by the Commission;
(c) the Issuer shall furnish to the Stockholder, prior to filing a Registration Statement, at least one conformed copy of such Registration Statement as is proposed to be filed, and thereafter shall promptly furnish such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the Prospectus included therein (including each preliminary Prospectus and any Prospectus filed under Rule 424 under the Securities Act) as the Stockholder may reasonably request in order to facilitate the disposition of the Registrable Securities; in addition, the Issuer shall promptly after receipt furnish to the Stockholder copies of the portions of any and all transmittal letters and any other correspondence (including comment letters) with the Commission or any other Governmental Entity in respect of such Registration Statement or amendment or supplement thereto and that relate to the sections entitled “Plan of Distribution” or “Selling Stockholder” or other sections containing information provided by the Stockholder pursuant to Section 6.2, and the Stockholder shall have the right to request that, subject to the terms of this Agreement, the Issuer modify any such information contained in such Registration Statement or amendment and supplement thereto pertaining to the Stockholder in such sections, and the Issuer shall use commercially reasonable efforts to comply with such request (provided, however, that the Issuer shall not have any obligation to modify any information if the Issuer reasonably expects that so doing would cause the Registration Statement to 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 not misleading);
(d) the Issuer shall use commercially reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such other securities or “blue sky” laws of such States of the United States of America where an exemption is not available and as the Stockholder shall reasonably request, (ii) to keep such registration or qualification in effect during the period during which the Registration Statement is required to be effective pursuant to this Agreement, (iii) to obtain the withdrawal of any order or other determination suspending such registration or qualification during the period during which the Registration Statement is required to be effective pursuant to this Agreement and (iv) to take any other action which may be reasonably necessary or advisable to enable the Stockholder to consummate the Disposition of the relevant Registrable Securities in such jurisdictions, except that the Issuer shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction;
(e) the Issuer shall enter into and perform customary agreements (including underwriting and indemnification and contribution agreements in customary form with the Managing Underwriters, Co-Managers or other Counterparty and reasonably acceptable to the Counterparty) and take such other commercially reasonable actions as are required in order to expedite or facilitate each Disposition (other than the Final Distribution or an Additional Disposition) and shall provide all reasonable cooperation, including causing appropriate officers to attend and participate in “road shows,” including other information meetings organized by the Counterparty, customary for similar dispositions; provided, however, that the Issuer and such officers shall not be obligated to attend or participate in more than one “road show” in connection with each such Disposition, unless such “road show” has been interrupted pursuant to Section 6.3, in which case such officers shall continue to be obligated to attend or participate in one more “road show”;
(f) the Issuer shall make available at reasonable times for inspection by the Stockholder, the Counterparties participating in any Disposition (other than the Final Distribution or an Additional Disposition), Stockholder Counsel and any attorney, accountant or other agent retained by any Counterparty (each, an “Inspector” and collectively, the “Inspectors”), all financial and other records, corporate documents of the Issuer and its Subsidiaries (collectively, the “Records”) as are reasonably necessary to enable them to exercise their due diligence responsibilities, and cause the Issuer’s and its Subsidiaries’ officers, directors and employees, and the independent public accountants of the Issuer, to discuss the business and affairs of the Issuer and its Subsidiaries, to supply promptly all information reasonably requested by any such Inspector in connection with such Registration Statement and to otherwise reasonably cooperate in the due diligence process of the Inspectors; provided, however, that the Issuer shall be under no obligation to provide any information to the Stockholder, such Counterparties, Stockholder Counsel or any Inspector, and no such party shall have access to any information that (x) consists of the Tax Returns (as defined in the TW NY APA) of the Issuer or (y) based on advice of the Issuer’s counsel, would (i) reasonably be expected to create any Liability under applicable law, or waive any material legal privilege (provided that in such latter event the Issuer shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (ii) result in the disclosure of any trade secrets of third parties; or (iii) violate any obligation of the Issuer with respect to confidentiality (provided that, with respect to clause (iii), to the extent specifically requested by the Stockholder, the Issuer has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality);
(g) in preparation for any Disposition (other than the Final Distribution or an Additional Disposition), the Issuer shall use commercially reasonable efforts to obtain “cold comfort” letters addressed to the Issuer and the Counterparties and dated the effective date of the Registration Statement and the date of the closing under the agreement relating to such Disposition from the Issuer’s independent public accountants, relating to the Issuer’s financial information, in customary form and covering such matters of the type customarily covered by “cold comfort” letters delivered in a firm-commitment underwritten public offering;
(h) the Issuer shall use commercially reasonable efforts to furnish, at the request of the Stockholder, on the date such Registrable Securities are delivered to the Counterparties for sale pursuant to such Registration Statement (other than the Final Registration Statement or an Additional Registration Statement), a signed opinion, dated such date, of counsel representing the Issuer for the purposes of such Disposition (other than the Final Distribution or an Additional Disposition), addressed to the Counterparties, covering such legal matters with respect to such Disposition in respect of which such opinion is being given as the Counterparties and the Stockholder may reasonably request and are customarily included in such opinions relating to transactions similar to such Disposition;
(i) the Issuer shall comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but no later than fifteen months after the effective date of the Registration Statement, an earnings statement covering a period of twelve months beginning after the effective date of the Registration Statement, in a manner that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(j) with respect to any Disposition or a distribution of Registrable Securities to the Adelphia Claimants pursuant to the Section 1145 Exemption, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the NYSE and to thereafter comply with all applicable rules of the NYSE, at or prior to the time of the relevant Disposition or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, so as to permit the continued listing of such securities on the NYSE, and if such listing on the NYSE has not been effected within a reasonable period of time following the first Disposition under this Agreement or completion of the distribution pursuant to the Section 1145 Exemption, as the case may be, the Issuer shall use commercially reasonable efforts to cause all Purchase Shares to be listed on the Nasdaq Stock Market and thereafter shall use commercially reasonable efforts to comply with all applicable rules of the Nasdaq Stock Market so as to permit the continued listing of such securities on the Nasdaq Stock Market;
(k) the Issuer shall use commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be registered with or approved by such Governmental Entities as may be necessary in the written opinion of counsel to the Issuer or Stockholder Counsel to enable the Stockholder to consummate the Disposition of such Registrable Securities within the United States of America;
(l) the Issuer shall timely keep Stockholder Counsel advised as to the initiation and progress of any Registration or Incidental Registration;
(m) the Issuer shall cooperate with the Stockholder and each underwriter participating in the Disposition (other than the Final Distribution or an Additional Disposition) of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(n) during the time when a Prospectus is required to be delivered under the Securities Act, the Issuer shall promptly give notice to the Stockholder (i) of the receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threat in writing of any proceeding for such purpose, (ii) of the occurrence of any of the events described in Section 6.3(b) that 6.3(b)that results in the Issuer delaying or not taking a Registration Action; and (iii) of the determination by the Issuer that a post-effective amendment to a Registration Statement will be filed with the Commission; and
(o) the Issuer shall use commercially reasonable efforts to promptly take all other steps necessary to effect the registration of the Registrable Securities contemplated hereby.
Appears in 1 contract
Samples: Registration Rights and Sale Agreement (Adelphia Communications Corp)
