REGISTRATION RIGHTS AGREEMENT, dated as of October
10, 1996, among TW INC. (to be renamed TIME WARNER
INC.), a Delaware corporation (the "Company"), and the
Holders (as defined below).
WHEREAS, in connection with the Amended and Restated
Agreement and Plan of Merger, dated as of September 22, 1995 (the "Amended
and Restated Merger Agreement"), among Time Warner Inc., a Delaware
corporation ("Parent"), the Company, Time Warner Acquisition Corp., a
Delaware corporation and a direct wholly owned subsidiary of the Company,
TW Acquisition Corp., a Georgia corporation and a direct wholly owned
subsidiary of the Company, and Xxxxxx Broadcasting System, Inc., a Georgia
corporation, each initial Holder will receive shares of Common Stock (as
defined below); and
WHEREAS, in order to induce the initial Holders to execute
and deliver to the Company the letters contemplated by Section 5.11 of the
Amended and Restated Merger Agreement, the Company has agreed to provide
each Holder with the registration rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Advice" shall have the meaning set forth in Section 5
hereof.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the
purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Amended and Restated Merger Agreement" shall have the
meaning set forth in the introductory clauses hereof.
"Business Day" means any day that is not a Saturday, a Sunday
or a legal holiday on which banking institutions in the State of New York
are not required to be open.
"Capital Stock" means, with respect to any person, any and
all shares, interests, participations or other equivalents (however
designated) of corporate stock issued by such person, including each class
of common stock and preferred stock of such person.
"Common Stock" means the Common Stock, par value $0.01 per
share, of the Company issued to any Holder named on the signature pages
hereof or any other shares of capital stock or other securities of the
Company into which such shares of Common Stock shall be reclassified or
changed, including, by reason of a merger, consolidation, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed,
or if the Company pays a dividend or makes a distribution on the Common
Stock in shares of capital stock, or subdivides (or combines) its
outstanding shares of Common Stock into a greater (or smaller) number of
shares of Common Stock, a share of Common Stock shall be deemed to be such
number of shares of stock and amount of other securities to which a holder
of a share of Common Stock outstanding immediately prior to such change,
reclassification, exchange, dividend, distribution, subdivision or
combination would be entitled.
"Company" shall have the meaning set forth in the
introductory clauses hereof.
"Delay Period" shall have the meaning set forth in Section
2(d) hereof.
"Demand Notice" shall have the meaning set forth in Section
2(a) hereof.
"Demand Registration" shall have the meaning set forth in
Section 2(b) hereof.
"Effectiveness Period" shall have the meaning set forth in
Section 2(d) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Hold Back Period" shall have the meaning set forth in
Section 4 hereof.
"Holder" means a person who owns Registrable Shares and is
either (i) named on the signature pages hereof as a Holder, or (ii) a
person who has agreed to be bound by the terms of this Agreement as if such
person were a Holder and is (A) a person to whom a Holder has transferred
Registrable Shares pursuant to Rule "4(1-1/2)" (or any similar private
transfer exemption), (B) upon the death of any Holder, the executor of the
estate of such Holder or any of such Holder's heirs, devisees, legatees or
assigns or (C) upon the disability of any Holder, any guardian or
conservator of such Holder.
"Interruption Period" shall have the meaning set forth in
Section 5 hereof.
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Piggyback Registration" shall have the meaning set forth in
Section 3 hereof.
"Prospectus" means the prospectus included in any
Registration Statement (including a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Shares covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
prospectus.
"Registrable Shares" means shares of Common Stock unless (i)
they have been effectively registered under Section 5 of the Securities Act
and disposed of pursuant to an effective Registration Statement, (ii) such
securities can be freely sold and transferred without restriction under
Rule 145 or any other restrictions under the Securities Act or (iii) such
securities have been transferred pursuant to Rule 144 under the Securities
Act or any successor rule such that, after any such transfer referred to in
this clause (iii), such securities may be freely transferred without
restriction under the Securities Act.
"Registration" means registration under the Securities Act of
an offering of Registrable Shares pursuant to a Demand Registration or a
Piggyback Registration.
"Registration Period" shall have the meaning set forth in
Section 2(a) hereof.
"Registration Statement" means any registration statement
under the Securities Act of the Company that covers any of the Registrable
Shares pursuant to the provisions of this Agreement, including the related
Prospectus, all amendments and supplements to such registration statement,
including pre-and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Shelf Registration" shall have the meaning set forth in
Section 2(b) hereof.
"underwritten registration or underwritten offering" means a
registration under the Securities Act in which securities of the Company
are sold to an underwriter for reoffering to the public.
SECTION 2. Demand Registration. (a) The Holders shall have
the right, during the period (the "Registration Period") commencing on the
date of this Agreement and ending on the third anniversary of the date of
this Agreement, by written notice (the "Demand Notice") given to the
Company, to request the Company to register under and in accordance with
the provisions of the Securities Act all or any portion of the Registrable
Shares designated by such Holders; provided, however, that the aggregate
number of Registrable Shares requested to be registered pursuant to any
Demand Notice and pursuant to any related Demand Notices received pursuant
to the following sentence shall be at least 5,000,000. Upon receipt of any
such Demand Notice, the Company shall promptly notify all other Holders of
the receipt of such Demand Notice and allow them the opportunity to include
Registrable Shares held by them in the proposed registration by submitting
their own Demand Notice. In connection with any Demand Registration in
which more than one Holder participates, in the event that such Demand
Registration involves an underwritten offering and the managing underwriter
or underwriters participating in such offering advise in writing the
Holders of Registrable Shares to be included in such offering that the
total number of Registrable Shares to be included in such offering exceeds
the amount that can be sold in (or during the time of) such offering
without delaying or jeopardizing the success of such offering (including
the price per share of the Registrable Shares to be sold), then the amount
of Registrable Shares to be offered for the account of such Holders shall
be reduced pro rata on the basis of the number of Registrable Shares to be
registered by each such Holder. The Holders as a group shall be entitled to
three Demand Registrations pursuant to this Section 2 unless any Demand
Registration does not become effective or is not maintained for a period
(whether or not continuous) of at least 120 days (or such shorter period as
shall terminate when all the Registrable Shares covered by such Demand
Registration have been sold pursuant thereto), in which case the Holders
will be entitled to an additional Demand Registration pursuant hereto.
(b) The Company, within 45 days of the date on which the
Company receives a Demand Notice given by Holders in accordance with
Section 2(a) hereof, shall file with the SEC, and the Company shall
thereafter use its best efforts to cause to be declared effective, a
Registration Statement on the appropriate form for the registration and
sale, in accordance with the intended method or methods of distribution, of
the total number of Registrable Shares specified by the Holders in such
Demand Notice, which may include a "shelf" registration (a "Shelf
Registration") pursuant to Rule 415 under the Securities Act (a "Demand
Registration").
(c) The Company shall use commercially reasonable efforts to
keep each Registration Statement filed pursuant to this Section 2
continuously effective and usable for the resale of the Registrable Shares
covered thereby (i) in the case of a Registration that is not a Shelf
Registration, for a period of 120 days from the date on which the SEC
declares such Registration Statement effective and (ii) in the case of a
Shelf Registration, for a period of 180 days from the date on which the SEC
declares such Registration Statement effective, in either case (x) until
all the Registrable Shares covered by such Registration Statement have been
sold pursuant to such Registration Statement), and (y) as such period may
be extended pursuant to this Section 2.
(d) The Company shall be entitled to postpone the filing of
any Registration Statement otherwise required to be prepared and filed by
the Company pursuant to this Section 2, or suspend the use of any effective
Registration Statement under this Section 2, for a reasonable period of
time, but not in excess of 90 days (a "Delay Period"), if any executive
officer of the Company determines that in such executive officer's
reasonable judgment and good faith the registration and distribution of the
Registrable Shares covered or to be covered by such Registration Statement
would materially interfere with any pending material financing, acquisition
or corporate reorganization or other material corporate development
involving the Company or any of its subsidiaries or would require premature
disclosure thereof and promptly gives the Holders written notice of such
determination, containing a general statement of the reasons for such
postponement and an approximation of the period of the anticipated delay;
provided, however, that (i) the aggregate number of days included in all
Delay Periods during any consecutive 12 months shall not exceed the
aggregate of (x) 180 days minus (y) the number of days occurring during all
Hold Back Periods and Interruption Periods during such consecutive 12
months and (ii) a period of at least 60 days shall elapse between the
termination of any Delay Period, Hold Back Period or Interruption Period
and the commencement of the immediately succeeding Delay Period. If the
Company shall so postpone the filing of a Registration Statement, the
Holders of Registrable Shares to be registered shall have the right to
withdraw the request for registration by giving written notice from the
Holders of a majority of the Registrable Shares that were to be registered
to the Company within 45 days after receipt of the notice of postponement
or, if earlier, the termination of such Delay Period (and, in the event of
such withdrawal, such request shall not be counted for purposes of
determining the number of requests for registration to which the Holders of
Registrable Shares are entitled pursuant to this Section 2). The time
period for which the Company is required to maintain the effectiveness of
any Registration Statement shall be extended by the aggregate number of
days of all Delay Periods, all Hold Back Periods and all Interruption
Periods occurring during such Registration and such period and any
extension thereof is hereinafter referred to as the "Effectiveness Period".
The Company shall not be entitled to initiate a Delay Period unless it
shall (A) to the extent permitted by agreements with other security holders
of the Company, concurrently prohibit sales by such other security holders
under registration statements covering securities held by such other
security holders and (B) in accordance with the Company's policies from
time to time in effect, forbid purchases and sales in the open market by
senior executives of the Company.
(e) Except to the extent required by agreements with other
security holders of the Company or Parent entered into prior to September
22, 1995, the Company shall not include any securities that are not
Registrable Shares in any Registration Statement filed pursuant to this
Section 2 without the prior written consent of the Holders of a majority in
number of the Registrable Shares covered by such Registration Statement.
(f) Holders of a majority in number of the Registrable Shares
to be included in a Registration Statement pursuant to this Section 2 may,
at any time prior to the effective date of the Registration Statement
relating to such Registration, revoke such request by providing a written
notice to the Company revoking such request. The Holders of Registrable
Shares who revoke such request shall reimburse the Company for all its
out-of-pocket expenses incurred in the preparation, filing and processing
of the Registration Statement; provided, however, that, if such revocation
was based on the Company's failure to comply in any material respect with
its obligations hereunder, such reimbursement shall not be required.
SECTION 3. Piggyback Registration. (a) Right To Piggyback. If
at any time during the Registration Period the Company proposes to file a
registration statement under the Securities Act with respect to a public
offering of securities of the same type as the Registrable Shares pursuant
to a firm commitment underwritten offering solely for cash for its own
account (other than a registration statement (i) on Form S-8 or any
successor forms thereto, or (ii) filed solely in connection with a dividend
reinvestment plan or employee benefit plan covering officers or directors
of the Company or its Affiliates) or for the account of any holder of
securities of the same type as the Registrable Shares (to the extent that
the Company has the right to include Registrable Shares in any registration
statement to be filed by the Company on behalf of such holder), then the
Company shall give written notice of such proposed filing to the Holders at
least 15 days before the anticipated filing date. Such notice shall offer
the Holders the opportunity to register such amount of Registrable Shares
as they may request (a "Piggyback Registration"). Subject to Section 3(b)
hereof, the Company shall include in each such Piggyback Registration all
Registrable Shares with respect to which the Company has received written
requests for inclusion therein within 10 days after notice has been given
to the Holders. Each Holder shall be permitted to withdraw all or any
portion of the Registrable Shares of such Holder from a Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration; provided, however, that if such withdrawal occurs after the
filing of the Registration Statement with respect to such Piggyback
Registration, the withdrawing Holders shall reimburse the Company for the
portion of the registration expenses payable with respect to the
Registrable Shares so withdrawn.
(b) Priority on Piggyback Registrations. The Company shall
permit the Holders to include all such Registrable Shares on the same terms
and conditions as any similar securities, if any, of the Company included
therein. Notwithstanding the foregoing, if the Company or the managing
underwriter or underwriters participating in such offering advise the
Holders in writing that the total amount of securities requested to be
included in such Piggyback Registration exceeds the amount which can be
sold in (or during the time of) such offering without delaying or
jeopardizing the success of the offering (including the price per share of
the securities to be sold), then the amount of securities to be offered for
the account of the Holders and other holders of securities who have
piggyback registration rights with respect thereto shall be reduced (to
zero if necessary) pro rata on the basis of the number of common stock
equivalents requested to be registered by each such Holder or holder
participating in such offering.
(c) Right To Abandon. Nothing in this Section 3 shall create
any liability on the part of the Company to the Holders if the Company in
its sole discretion should decide not to file a registration statement
proposed to be filed pursuant to Section 3(a) hereof or to withdraw such
registration statement subsequent to its filing, regardless of any action
whatsoever that a Holder may have taken, whether as a result of the
issuance by the Company of any notice hereunder or otherwise.
SECTION 4. Holdback Agreement. If (i) during the
Effectiveness Period, the Company shall file a registration statement
(other than in connection with the registration of securities issuable
pursuant to an employee stock option, stock purchase or similar plan or
pursuant to a merger, exchange offer or a transaction of the type specified
in Rule 145(a) under the Securities Act) with respect to the Common Stock
or similar securities or securities convertible into, or exchangeable or
exercisable for, such securities and (ii) with reasonable prior notice, the
Company (in the case of a nonunderwritten public offering by the Company
pursuant to such registration statement) advises the Holders in writing
that a public sale or distribution of such Registrable Shares would
materially adversely affect such offering or the managing underwriter or
underwriters (in the case of an underwritten public offering by the Company
pursuant to such registration statement) advises the Company in writing (in
which case the Company shall notify the Holders) that a public sale or
distribution of Registrable Shares would materially adversely impact such
offering, then each Holder shall, to the extent not inconsistent with
applicable law, refrain from effecting any public sale or distribution of
Registrable Shares during the 10 days prior to the effective date of such
registration statement and until the earliest of (A) the abandonment of
such offering, (B) 90 days from the effective date of such registration
statement and (C) if such offering is an underwritten offering, the
termination in whole or in part of any "hold back" period obtained by the
underwriter or underwriters in such offering from the Company in connection
therewith (each such period, a "Hold Back Period").
SECTION 5. Registration Procedures. In connection with the
registration obligations of the Company pursuant to and in accordance with
Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the
Company shall use commercially reasonable efforts to effect such
registration to permit the sale of such Registrable Shares in accordance
with the intended method or methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible (but subject to
Sections 2 and 3 hereof):
(a) prepare and file with the SEC a Registration
Statement for the sale of the Registrable Shares on any form for
which the Company then qualifies or which counsel for the Company
shall deem appropriate in accordance with such Holders' intended
method or methods of distribution thereof, subject to Section 2(b)
hereof, and, subject to the Company's right to terminate or
abandon a registration pursuant to Section 3(c) hereof, use
commercially reasonable efforts to cause such Registration
Statement to become effective and remain effective as provided
herein;
(b) prepare and file with the SEC such amendments
(including post-effective amendments) to such Registration
Statement, and such supplements to the related Prospectus, as may
be required by the rules, regulations or instructions applicable
to the Securities Act during the applicable period in accordance
with the intended methods of disposition specified by the Holders
of the Registrable Shares covered by such Registration Statement,
make generally available earnings statements satisfying the
provisions of Section 11(a) of the Securities Act (provided that
the Company shall be deemed to have complied with this clause if
it has complied with Rule 158 under the Securities Act), and cause
the related Prospectus as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; provided, however, that before
filing a Registration Statement or Prospectus, or any amendments
or supplements thereto (other than reports required to be filed by
it under the Exchange Act), the Company shall furnish to the
Holders of Registrable Shares covered by such Registration
Statement and their counsel for review and comment, copies of all
documents required to be filed;
(c) notify the Holders of any Registrable Shares covered
by such Registration Statement promptly and (if requested) confirm
such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to such Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request
by the SEC for amendments or supplements to such Registration
Statement or the related Prospectus or for additional information
regarding such Holders, (iii) of the issuance by the SEC of any
stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose, and (v) of the happening of any event that
requires the making of any changes in such Registration Statement,
Prospectus or documents incorporated or deemed to be incorporated
therein by reference so that they will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading:
(d) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Registration Statement, or the lifting of any suspension of the
qualification or exemption from qualification of any Registrable
Shares for sale in any jurisdiction in the United States;
(e) furnish to the Holder of any Registrable Shares
covered by such Registration Statement, each counsel for such
Holders and each managing underwriter, if any, without charge, one
conformed copy of such Registration Statement, as declared
effective by the SEC, and of each post-effective amendment
thereto, in each case including financial statements and schedules
and all exhibits and reports incorporated or deemed to be
incorporated therein by reference; and deliver, without charge,
such number of copies of the preliminary prospectus, any amended
preliminary prospectus, each final Prospectus and any
post-effective amendment or supplement thereto, as such Holder may
reasonably request in order to facilitate the disposition of the
Registrable Shares of such Holder covered by such Registration
Statement in conformity with the requirements of the Securities
Act;
(f) prior to any public offering of Registrable Shares
covered by such Registration Statement, use commercially
reasonable efforts to register or qualify such Registrable Shares
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Holders of such Registrable Shares shall
reasonably request in writing; provided, however, that the Company
shall in no event be required to qualify generally to do business
as a foreign corporation or as a dealer in any jurisdiction where
it is not at the time so qualified or to execute or file a general
consent to service of process in any such jurisdiction where it
has not theretofore done so or to take any action that would
subject it to general service of process or taxation in any such
jurisdiction where it is not then subject;
(g) upon the occurrence of any event contemplated by
paragraph 5(c)(v) above, prepare a supplement or post-effective
amendment to such Registration Statement or the related Prospectus
or any document incorporated or deemed to be incorporated therein
by reference and file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Shares
being sold thereunder (including upon the termination of any Delay
Period), such 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 under which they were made, not
misleading;
(h) use commercially reasonable efforts to cause all
Registrable Shares covered by such Registration Statement to be
listed on each securities exchange or automated interdealer
quotation system, if any, on which similar securities issued by
the Company are then listed or quoted;
(i) on or before the effective date of such Registration
Statement, provide the transfer agent of the Company for the
Registrable Shares with printed certificates for the Registrable
Shares covered by such Registration Statement, which are in a form
eligible for deposit with The Depository Trust Company;
(j) if such offering is an underwritten offering, make
available for inspection by any Holder of Registrable Shares
included in such Registration Statement, any underwriter
participating in any offering pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by
any such Holder or underwriter (collectively, the "Inspectors"),
all financial and other records and other information, pertinent
corporate documents and properties of any of the Company and its
subsidiaries and affiliates (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise their due
diligence responsibilities; provided, however, that the Records
that the Company determines, in good faith, to be confidential and
which it notifies the Inspectors in writing are confidential shall
not be disclosed to any Inspector unless such Inspector signs a
confidentiality agreement reasonably satisfactory to the Company
(which shall permit the disclosure of such Records in such
Registration Statement or the related Prospectus if necessary to
avoid or correct a material misstatement in or material omission
from such Registration Statement or Prospectus) or either (i) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or (ii)
the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction; provided
further, however, that (A) any decision regarding the disclosure
of information pursuant to subclause (i) shall be made only after
consultation with counsel for the applicable Inspectors and the
Company and (B) with respect to any release of Records pursuant to
subclause (ii), each Holder of Registrable Shares agrees that it
shall, promptly after learning that disclosure of such Records is
sought in a court having jurisdiction, give notice to the Company
so that the Company, at the Company's expense, may undertake
appropriate action to prevent disclosure of such Records; and
(k) if such offering is an underwritten offering, enter
into such agreements (including an underwriting agreement in form,
scope and substance as is customary in underwritten offerings) and
take all such other appropriate and reasonable actions requested
by the Holders of a majority of the Registrable Shares being sold
in connection therewith (including those reasonably requested by
the managing underwriters) in order to expedite or facilitate the
disposition of such Registrable Shares, and in such connection,
(i) use commercially reasonable efforts to obtain opinions of
counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters and counsel to the
Holders of the Registrable Shares being sold), addressed to each
selling Holder of Registrable Shares covered by such Registration
Statement and each of the underwriters as to the matters
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such counsel and underwriters, (ii) use commercially reasonable
efforts to obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by
the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to each selling holder of Registrable Shares covered by
the Registration Statement (unless such accountants shall be
prohibited from so addressing such letters by applicable standards
of the accounting profession) and each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, (iii) if requested and if an underwriting
agreement is entered into, provide indemnification provisions and
procedures substantially to the effect set forth in Section 8
hereof with respect to all parties to be indemnified pursuant to
said Section. The above shall be done at each closing under such
underwriting or similar agreement, or as and to the extent
required thereunder.
The Company may require each Holder of Registrable Shares
covered by a Registration Statement to furnish such information regarding
such Holder and such Holder's intended method of disposition of such
Registrable Shares as it may from time to time reasonably request in
writing. If any such information is not furnished within a reasonable
period of time after receipt of such request, the Company may exclude such
Holder's Registrable Shares from such Registration Statement.
Each Holder of Registrable Shares covered by a Registration
Statement agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii),
5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, that such Holder shall forthwith
discontinue disposition of any Registrable Shares covered by such
Registration Statement or the related Prospectus until receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
5(g) hereof, or until such Holder is advised in writing (the "Advice") by
the Company that the use of the applicable Prospectus may be resumed, and
has received copies of any amended or supplemented Prospectus or any
additional or supplemental filings which are incorporated, or deemed to be
incorporated, by reference in such Prospectus (such period during which
disposition is discontinued being an "Interruption Period") and, if
requested by the Company, the Holder shall deliver to the Company (at the
expense of the Company) all copies then in its possession, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Shares at the time of receipt of such request.
Each Holder of Registrable Shares covered by a Registration
Statement further agrees not to utilize any material other than the
applicable current preliminary prospectus or Prospectus in connection with
the offering of such Registrable Shares.
SECTION 6. Registration Expenses. Whether or not any
Registration Statement is filed or becomes effective, the Company shall pay
all costs, fees and expenses incident to the Company's performance of or
compliance with this Agreement, including (i) all registration and filing
fees, including NASD filing fees, (ii) all fees and expenses of compliance
with securities or Blue Sky laws, including reasonable fees and
disbursements of counsel in connection therewith, (iii) printing expenses
(including expenses of printing certificates for Registrable Shares and of
printing prospectuses if the printing of prospectuses is requested by the
Holders or the managing underwriter, if any), (iv) messenger, telephone and
delivery expenses, (v) fees and disbursements of counsel for the Company,
(vi) fees and disbursements of all independent certified public accountants
of the Company (including expenses of any "cold comfort" letters required
in connection with this Agreement) and all other persons retained by the
Company in connection with such Registration Statement, (vii) fees and
disbursements of one counsel, other than the Company's counsel, selected by
Holders of a majority of the Registrable Shares being registered, to
represent all such Holders, (viii) fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities and (ix) all other
costs, fees and expenses incident to the Company's performance or
compliance with this Agreement. Notwithstanding the foregoing, the fees and
expenses of any persons retained by any Holder, other than one counsel for
all such Holders, and any discounts, commissions or brokers' fees or fees
of similar securities industry professionals and any transfer taxes
relating to the disposition of the Registrable Shares by a Holder, will be
payable by such Holder and the Company will have no obligation to pay any
such amounts.
SECTION 7. Underwriting Requirements. (a) Subject to Section
7(b) hereof, any Holder shall have the right, by written notice, to request
that any Demand Registration provide for an underwritten offering.
(b) In the case of any underwritten offering pursuant to a
Demand Registration, the Holders of a majority of the Registrable Shares to
be disposed of in connection therewith shall select the institution or
institutions that shall manage or lead such offering, which institution or
institutions shall be reasonably satisfactory to the Company. In the case
of any underwritten offering pursuant to a Piggyback Registration, the
Company shall select the institution or institutions that shall manage or
lead such offering. No Holder shall be entitled to participate in an
underwritten offering unless and until such Holder has entered into an
underwriting or other agreement with such institution or institutions for
such offering in such form as the Company and such institution or
institutions shall determine.
SECTION 8. Indemnification. (a) Indemnification by the
Company. The Company shall, without limitation as to time, indemnify and
hold harmless, to the full extent permitted by law, each Holder of
Registrable Shares whose Registrable Shares are covered by a Registration
Statement or Prospectus, the officers, directors and agents and employees
of each of them, each Person who controls each such Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such
controlling person, to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgment, costs (including,
without limitation, costs of preparation and reasonable attorneys' fees)
and expenses (collectively, "Losses"), as incurred, arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in
such Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same are based upon information furnished in writing to the
Company by or on behalf of such Holder expressly for use therein; provided,
however, that the Company shall not be liable to any such Holder to the
extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any 4 preliminary prospectus if (i) having previously been furnished by
or on behalf of the Company with copies of the Prospectus, such Holder
failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Registrable Shares by such
Holder to the person asserting the claim from which such Losses arise and
(ii) the Prospectus would have corrected in all material respects such
untrue statement or alleged untrue statement or such omission or alleged
omission; and provided further, however, that the Company shall not be
liable in any such case to the extent that any such Losses arise out of or
are based upon an untrue statement or alleged untrue statement or omission
or alleged omission in the Prospectus, if (x) such untrue statement or
alleged untrue statement, omission or alleged omission is corrected in all
material respects in an amendment or supplement to the Prospectus and (y)
having previously been furnished by or on behalf of the Company with copies
of the Prospectus as so amended or supplemented, such Holder thereafter
fails to deliver such Prospectus as so amended or supplemented, prior to or
concurrently with the sale of Registrable Shares.
(b) Indemnification by Holder of Registrable Shares. In
connection with any Registration Statement in which a Holder is
participating, such Holder shall furnish to the Company in writing such
information as the Company reasonably requests for use in connection with
such Registration Statement or the related Prospectus and agrees to
indemnify, to the full extent permitted by law, the Company, its directors,
officers, agents or employees, each Person who controls the Company (within
the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) and the directors, officers, agents or employees of such
controlling Persons, from and against all Losses arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in
such Registration Statement or the related Prospectus or any amendment or
supplement thereto, or any preliminary prospectus, or arising out of or
based upon any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue or
alleged untrue statement or omission or alleged omission is based upon any
information so furnished in writing by or on behalf of such Holder to the
Company expressly for use in such Registration Statement or Prospectus.
(c) Conduct of Indemnification Proceedings. If any Person
shall be entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto; provided, however,
that the delay or failure to so notify the indemnifying party shall not
relieve the indemnifying party from any obligation or liability except to
the extent that the indemnifying party has been prejudiced by such delay or
failure. The indemnifying party shall have the right, exercisable by giving
written notice to an indemnified party promptly after the receipt of
written notice from such indemnified party of such claim or proceeding, to
assume, at the indemnifying party's expense, the defense of any such claim
or proceeding, with counsel reasonably satisfactory to such indemnified
party; provided, however, that (i) an indemnified party shall have the
right to employ separate counsel in any such claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless: (1) the
indemnifying party agrees to pay such fees and expenses; (2) the
indemnifying party fails promptly to assume the defense of such claim or
proceeding or fails to employ counsel reasonably satisfactory to such
indemnified party; or (3) the named parties to any proceeding (including
impleaded parties) include both such indemnified party and the indemnifying
party, and such indemnified party shall have been advised by counsel that
there may be one or more legal defenses available to it that are
inconsistent with those available to the indemnifying party or that a
conflict of interest is likely to exist among such indemnified party and
any other indemnified parties (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party); and (ii) subject to clause (3) above, the indemnifying
party shall not, in connection with any one such claim or proceeding or
separate but substantially similar or related claims or proceedings in the
same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one firm of
attorneys (together with appropriate local counsel) at any time for all of
the indemnified parties, or for fees and expenses that are not reasonable.
Whether or not such defense is assumed by the indemnifying party, such
indemnified party shall not be subject to any liability for any settlement
made without its consent. The indemnifying party shall not consent to entry
of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably
satisfactory to the indemnified party, from all liability in respect of
such claim or litigation for which such indemnified party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any Losses
(other than in accordance with its terms), then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any action in
question, including any untrue statement of a material fact or omission or
alleged omission to state a material fact, has been taken by, or relates to
information supplied by, such indemnifying party or indemnified party, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent any such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by such
party in connection with any investigation or proceeding. The parties
hereto agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 8(d), an indemnifying party
that is a Holder shall not be required to contribute any amount which is in
excess of the amount by which the total proceeds received by such Holder
from the sale of the Registrable Shares sold by such Holder (net of all
underwriting discounts and commissions) exceeds the amount of any damages
that such indemnifying party has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
SECTION 9. Miscellaneous. (a) Termination. This Agreement and
the obligations of the Company and the Holders hereunder (other than
Section 8 hereof) shall terminate on the first date on which no Registrable
Shares remain outstanding.
(b) Notices. All notices or communications hereunder shall be
in writing (including telecopy or similar writing), addressed as follows:
To the Company:
Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: General Counsel
With a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
To the Holders:
R.E. Xxxxxx
In care of Xxxxxx Broadcasting System, Inc.
Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
For Courier delivery
Xxx XXX Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
Any such notice or communication shall be deemed given (i)
when made, if made by hand delivery, (ii) upon transmission, if sent by
confirmed telecopier, (iii) one business day after being deposited with a
next-day courier, postage prepaid, or (iv) three business days after being
sent certified or registered mail, return receipt requested, postage
prepaid, in each case addressed as above (or to such other address or to
such other telecopier number as such party may designate in writing from
time to time).
(c) Separability. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such
invalidity or unenforceability shall not affect the remaining provisions
hereof which shall remain in full force and effect.
(d) Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
devisees, legatees, legal representatives, successors and assigns.
(e) Entire Agreement. This Agreement represents the entire
agreement of the parties and shall supersede any and all previous
contracts, arrangements or understandings between the parties hereto with
respect to the subject matter hereof.
(f) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of Holders of at least a majority in number of the Registrable
Shares then outstanding.
(g) Publicity. No public release or announcement concerning
the transactions contemplated hereby shall be issued by any party without
the prior consent of the other parties, except to the extent that such
party is advised by counsel that such release or announcement is necessary
or advisable under applicable law or the rules or regulations of any
securities exchange, in which case the party required to make the release
or announcement shall to the extent practicable provide the other party
with an opportunity to review and comment on such release or announcement
in advance of its issuance.
(h) Expenses. Whether or not the transactions contemplated
hereby are consummated, except as otherwise provided herein, all costs and
expenses incurred in connection with the execution of this Agreement shall
be paid by the party incurring such costs or expenses, except as otherwise
set forth herein.
(i) Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be one and the same agreement, and
shall become effective when counterparts have been signed by each of the
parties and delivered to each other party.
(k) Governing Law. This Agreement shall be construed,
interpreted, and governed in accordance with the internal laws of New York.
(l) Calculation of Time Periods. Except as otherwise
indicated, all periods of time referred to herein shall include all
Saturdays, Sundays and holidays; provided, however, that if the date to
perform the act or give any notice with respect to this Agreement shall
fall on a day other than a Business Day, such act or notice may be timely
performed or given if performed or given on the next succeeding Business
Day.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first written above.
TW INC.,
by /s/ Xxxxxx X. XxXxxxxxx
____________________________
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
/s/ R. E. Xxxxxx
_____________________________
R. E. Xxxxxx
XXXXXX OUTDOOR, INC.,
by /s/ R. E. Xxxxxx
__________________________
Name: R. E. Xxxxxx
Title: President
XXXXXX FOUNDATION, INC.,
by /s/ R. E. Xxxxxx
___________________________
Name: R. E. Xxxxxx
Title: President
XXXXXX X. XXXXXX CHARITABLE
REMAINDER UNITRUST NO. 2,
by /s/ R. E. Xxxxxx
___________________________
Name: R. E. Xxxxxx
Title: Trustee
XXXXXX PARTNERS, L.P.,
by /s/ R. E. Xxxxxx
___________________________
Name: R. E. Xxxxxx
Title: General Partner