Cephalon (CEPH)

Sale Period”), (ii) furnished to each of them copies of all such Filed Materials (and all documents incorporated therein by reference) sufficiently in advance of filing to provide them with a reasonable opportunity to review such documents and comment thereon, (iii) given each of them such access to its books and records and such opportunities to discuss the business of Counterparty with its officers and the independent public accountants who have issued a report on its financial statement as shall be reasonably necessary, in the opinion of Deutsche and such underwriter(s) or their respective counsel, to conduct a reasonable investigation (within the meaning of the Securities Act) with respect to such Filed Materials, (iv) delivered to Deutsche and its underwriter(s), if any, the financial statements of Counterparty filed with the Commission, (v) included in such Filed Materials material, furnished to Counterparty in writing, which in the reasonable judgment of Deutsche or its underwriter(s), if any, subject to the consent of Counterparty (which shall not be unreasonably withheld), should be included with respect to Deutsche, Deutsche’s underwriter(s) and the “Plan of Distribution”, including, without limitation, language to the effect that the holding by Deutsche of the Shares is not to be construed as a recommendation by Deutsche of the investment quality thereof and (vi) if requested by Deutsche, deleted from such Filed Materials any reference to Deutsche by name or otherwise if in the written opinion of counsel to Deutsche, acceptable in form and substance to Counterparty, such reference to Deutsche by name or otherwise is not required by the Securities Act or any similar Federal statute or applicable law then in force.

 

(h)           Counterparty shall have furnished to Deutsche and any underwriter, addressed to Deutsche and any such underwriter and dated the first day of the Sale Period, (i) an opinion of counsel for Counterparty (which opinion may be from internal counsel for Counterparty) and (ii) a “cold comfort” letter signed by the independent public accountants who have issued a report on Counterparty’s financial statements included in such Registration Statement, each in form and substance satisfactory to Deutsche and any such underwriter and their respective counsel covering substantially the same matters with respect to such Shares and the offering, sale and issuance thereof and the financial statements of Counterparty as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriter(s) in underwritten public offerings of securities and, in the case of the accountants’ letter, such other financial matters as Deutsche may have reasonably requested.

 

(i)            Counterparty shall have complied with all applicable provisions of the Securities Act and the Exchange Act, all applicable rules of the Commission and all other applicable laws, rules and regulations of any governmental or regulatory authority with respect to such Filed Materials and such Shares and the offering, sale and issuance thereof.

 

(j)            Counterparty shall have caused all such Shares to be listed on the Exchange and on each securities exchange on which similar securities issued by Counterparty are then listed.

 

(k)           Counterparty shall have provided a transfer agent and registrar for such Shares.

 

(l)            Counterparty shall have taken such other actions as Deutsche or any underwriter of such Shares shall have reasonably requested in order to expedite or facilitate the disposition of such Shares.

 

(m)          Counterparty shall provide Deutsche and its underwriter(s), if any, with indemnity and contribution in form and substance acceptable to Deutsche covering such matters relating to the Shares, the Filed Materials, and such other matters as Deutsche shall reasonably request.

 

(n)           Counterparty shall have paid all customary costs and expenses reasonably incurred in connection with the foregoing, including, but without limitation, all underwriting fees relating to the sale of the Shares.

 

(o)           Counterparty shall deliver all such registered Shares through the Clearance System.

 

(p)           If Counterparty is not the Issuer, then references above in this Appendix A to Counterparty shall be deemed to be references to the Issuer as necessary, and Counterparty agrees to use its best efforts to comply with the Registration Procedures set forth above.

 

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