Covenants in Connection With Registration. (a) The Company hereby covenants with the Merrxxx Xxxcx Xxxties that (i) it shall not file any Resale Registration Statement or Resale Prospectus or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties and the Merrxxx Xxxcx Xxxties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does not object within two business days of receiving any such material, there shall be deemed to have no objection thereto); (ii) it shall immediately notify the Merrxxx Xxxcx Xxxties of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it shall immediately notify the Merrxxx Xxxcx Xxxties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it shall immediately notify the Merrxxx Xxxcx Xxxties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties a reasonable number of copies of a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. (b) The Merrxxx Xxxcx Xxxties shall cooperate with the Company in connection with the preparation of the Resale Registration Statement and shall furnish to the Company, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law. (c) The Merrxxx Xxxcx Xxxties shall notify the Company at least two business days prior to the earlier of the date on which it intends to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does not, within such two day period, advise the Merrxxx Xxxcx Xxxties of the existence of any facts of the type referred to in Section 7.2(a) above, then the Company shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties that no such facts then exist and the Merrxxx Xxxcx Xxxties may rely on such certificate and representations in making such sales. The preceding sentence shall in no way limit the Company's obligations under Section 7.2(a) above. (d) The Company shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day prior to the closing of any sale of the Shares. (e) If either of the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the Company, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties is, in any event, reasonably acceptable to the Company for this purpose) and (ii) the Company shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company and other entities reasonable requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company (and, if necessary, other independent certified public accountants of any affiliate or 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 of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be. (f) The Company will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, and
Appears in 2 contracts
Samples: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Covenants in Connection With Registration. (a) The Company Companies hereby covenants covenant with the Merrxxx Xxxcx Xxxties PaineWebber Parties that (i) it the Companies shall not file any Resale Registration Statement or Resale Prospectus or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties PaineWebber Parties and their counsel and the Merrxxx Xxxcx Xxxties PaineWebber Parties and their counsel did not object thereto in good faith (provided that if there is no objection by either the Merrxxx Xxxcx Xxxties does not object PaineWebber Parties or their counsel within two business days of receiving any such material, there shall be deemed to have been no objection thereto); (ii) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties PaineWebber Parties of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it the Companies shall make every all reasonable effort best efforts to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties PaineWebber Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties PaineWebber Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be be, stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties PaineWebber Parties a reasonable number of copies of a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading.
(b) The Merrxxx Xxxcx Xxxties PaineWebber Parties shall cooperate with the Company Companies in connection with the preparation of the Resale Registration Statement and shall furnish to the CompanyCompanies, in a timely manner, all information in their possession or reasonably obtainable by them them, but otherwise not reasonably obtainable by the Companies, and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Paired Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties PaineWebber Parties shall notify the Company Companies at least two business days prior to the earlier of the date on which it intends they intend to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does Companies do not, within such two day period, advise the Merrxxx Xxxcx Xxxties PaineWebber Parties of the existence of any facts of the type referred to in Section 7.2(a) above, then the Company Companies shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties PaineWebber Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties PaineWebber Parties may rely on such certificate and representations in making such sales. The preceding sentence shall in no way limit the Company's Companies' obligations under Section 7.2(a) above.
(d) The Company the Companies shall cooperate with the Merrxxx Xxxcx Xxxties PaineWebber Parties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties PaineWebber Parties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either the method of settlement pursuant to the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect Adjustment Agreement is an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties PaineWebber Parties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the CompanyCompanies, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties PaineWebber Agent is, in any event, reasonably acceptable to the Company Companies for this purpose) and (ii) the Company Companies shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company Companies and other entities reasonable reasonably requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties PaineWebber Parties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties PaineWebber Parties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable reasonably requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties PaineWebber Parties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties PaineWebber Parties from the independent certified public accountants of the Company Companies (and, if necessary, other independent certified public accountants of any affiliate or Subsidiary of either of the Company Companies or of any business acquired by the Company Companies for which financial statements and financial data are, or are required to be, included in the Resale Registration Statement), ) addressed to each of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx XxxtiesPaineWebber Parties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties PaineWebber Parties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx XxxtiesPaineWebber Parties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company Companies will make reasonably available for inspection by the Merrxxx Xxxcx XxxtiesPaineWebber Parties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, andand cause the officers of the Companies and their "significant subsidiaries" (as that term is defined in Regulation S-X) to be available, upon request at least two business days in advance, to respond to questions relevant to such due diligence inquiries.
(g) The parties hereby acknowledge and agree that the Companies may suspend the right of the PaineWebber Parties to effect sales of the Paired Shares through use of the prospectus forming a part of a Resale Registration Statement (except as may further be limited in the Adjustment Agreement) for a period of no more than 90 days (or fewer if the PaineWebber Parties are notified to that effect by the Companies) in connection with a public offering or a sale pursuant to Rule 144A under the Securities Act (an "Offering") of Paired Shares (or shares of capital stock convertible into Paired Shares) by the Companies (a "Blackout Period"); provided that (i) there shall be no more than three Blackout Periods during any 12-month period, and (ii) the total number of days of all Blackout Periods during any 12-month period shall not exceed 120. The PaineWebber Parties hereby covenant that they will not sell any Paired Shares pursuant to said prospectus during a Blackout Period which shall commence at the time the Companies give the PaineWebber Parties written notice of such Blackout Period; provided further, that no Blackout Period shall be applicable or in any way restrict the PaineWebber Parties after the Maturity Date, or after the occurrence of a Cross Default or a Price Decline Termination Event (as defined in the Adjustment Agreement).
Appears in 2 contracts
Samples: Purchase Agreement (Wyndham International Inc), Purchase Agreement (Wyndham International Inc)
Covenants in Connection With Registration. (a) The Company Companies hereby covenants covenant with the Merrxxx Xxxcx Xxxties UBS Parties that (i) it the Companies shall not file any Resale Registration Statement or Resale Prospectus relating to the resale of the Shares or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties UBS Parties and the Merrxxx Xxxcx Xxxties UBS Parties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does UBS Parties do not object within two business days of receiving any such material, there they shall be deemed to have no objection thereto); (ii) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it the Companies shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it the Companies shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties UBS Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties (except during a reasonable number of copies of Black-out Period) prepare a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; provided that this clause (v) shall in no way limit the Companies' right to suspend the right of the UBS Parties to effect sales under the Registration Statement during any Black-out Period as specified at Section 5.2 above.
(b) The Merrxxx Xxxcx Xxxties shall cooperate with the Company in connection with the preparation of the Resale Registration Statement and shall furnish to the Company, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties UBS Parties shall notify the Company Companies at least two business days prior to the earlier of the date on which it intends to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade Statements and if the Company does Companies do not, within such two two-day period, advise the Merrxxx Xxxcx Xxxties UBS Parties of the existence of any facts of the type referred to in Section 7.2(a7.2(a)(v) above, then the Company Companies shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties UBS Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties UBS Parties may rely on such certificate and representations representation in making such sales. The preceding sentence shall in no way limit the Company's Companies obligations under Section 7.2(a) above.
(d) The Company shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the Company, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties is, in any event, reasonably acceptable to the Company for this purpose) and (ii) the Company shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company and other entities reasonable requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company (and, if necessary, other independent certified public accountants of any affiliate or 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 of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, and
Appears in 2 contracts
Samples: Purchase Agreement (Wyndham International Inc), Purchase Agreement (Wyndham International Inc)
Covenants in Connection With Registration. (a) The Company Each of the Companies hereby covenants with the Merrxxx Xxxcx Xxxties LBI that (i) it such Company shall not file any Resale Registration Statement or Resale Prospectus relating to the resale of the Shares or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties LBI and the Merrxxx Xxxcx Xxxties LBI did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties LBI does not object within two business days of receiving any such material, there shall be deemed to have been no objection thereto); (ii) it such Company shall immediately notify the Merrxxx Xxxcx Xxxties LBI of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it such Company shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it such Company shall immediately notify the Merrxxx Xxxcx Xxxties LBI of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it such Companies shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties LBI in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties LBI a reasonable number of copies of a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading provided that this clause (v) shall in no way limit the Companies' right to suspend the right of LBI to affect sales under the Resale Registration Statement during any Black-out Period as specified in Section 5.2 above.
(b) The Merrxxx Xxxcx Xxxties LBI shall cooperate with the Company Companies in connection with the preparation of the Resale Registration Statement and shall furnish to the CompanyCompanies, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Paired Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties LBI shall notify the Company Companies at least two business days prior to the earlier of the date on which it intends they intend to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does Companies do not, within such two day period, advise the Merrxxx Xxxcx Xxxties LBI of the existence of any facts of the type referred to in Section 7.2(a) above, then the Company Companies 16 shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties LBI that no such facts then exist and the Merrxxx Xxxcx Xxxties LBI may rely on such certificate and representations in making such sales. The preceding sentence shall in no way limit the Company's Companies' obligations under Section 7.2(a) above.
(d) The Company the Companies shall cooperate with the Merrxxx Xxxcx Xxxties LBI to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties LBI may reasonably request at least one Business Day two business days prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties Companies notify the Company LBI that MLI wishes they wish LBI to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties LBI shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the CompanyCompanies, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties LBI is, in any event, reasonably acceptable to the Company Companies for this purpose) and (ii) the Company Companies shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company Companies and other entities reasonable reasonably requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties LBI addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties LBI covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable reasonably requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties LBI (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties LBI from the independent certified public accountants of the Company Companies (and, if necessary, other independent certified public accountants of any affiliate or Subsidiary of either of the Company Companies or of any business acquired by the Company Companies for which financial statements and financial data are, or are required to be, included in the Resale Registration Statement), addressed to each of the underwriters or the executing dealer, as the case may be, andad, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx XxxtiesLBI, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties LBI and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx XxxtiesLBI); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company Companies will make reasonably available for inspection by the Merrxxx Xxxcx XxxtiesLBI, any underwriter, agent or broker-dealer participating in any disposition of Shares such 17 information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, andand cause the officers of the Companies and their "significant subsidiaries" (as that term is defined in Regulation S-X) to be available, upon request at least two business days in advance, to respond to questions relevant to such due diligence inquiries.
(g) The parties hereby acknowledge and agree that the Companies may suspend the right of LBI to effect sales of the Paired Shares through use of the Resale Prospectus forming a part of a Resale Registration Statement for a period of 90 days (or fewer if LBI are notified to that effect by the Companies) in connection with a public offering or a sale pursuant to Rule 144A under the Securities Act (an "Offering") of Paired Shares (or shares of capital stock convertible into Paired Shares) by the Companies (a "Suspension Period"); provided that (i) there shall be no more than three Suspension Periods during any 12-month period, and (ii) the total number of days of all Suspension Periods during any 12-month period shall not exceed 120. LBI hereby covenants that it will not sell any Paired Shares pursuant to said Resale Prospectus during a Suspension Period which shall commence at the time the Companies give LBI written notice of such Suspension Period; provided further, that no Suspension Period shall be applicable or in any way restrict LBI after the occurrence of the Maturity Date or a Price Decline Termination Event. The ability of the Companies to suspend the right of LBI to effect sales of the Paired Shares pursuant to this Section 7.2(g) shall not be construed to limit the Companies' rights under Section 5.2.
Appears in 1 contract
Samples: Purchase Agreement (Starwood Hotel & Resorts Worldwide Inc)
Covenants in Connection With Registration. (a) The Company hereby covenants with the Merrxxx Xxxcx Xxxties that (i) it The Companies hereby covenant with the Purchaser that (A) the Companies shall not file any Resale Registration Statement or Resale Prospectus relating to the resale of the Shares or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties Purchaser and the Merrxxx Xxxcx Xxxties Purchaser did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties Purchaser does not object within two business days of receiving any such material, there they shall be deemed to have no objection thereto); (iiB) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties Purchaser of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iiiC) it the Companies shall make every commercially reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (ivD) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties Purchaser of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (vE) it the Companies shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties Purchaser in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, supplement or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties (except during a reasonable number of copies of Black-Out Period) prepare a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale 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 therein, in the light of the circumstances under which they were made, not misleading; provided that this clause (E) shall in no way limit the Companies' right to suspend the right of the Purchaser to effect sales under the Registration Statement during any Black-Out Period as specified at Section 5(c) above.
(bii) The Merrxxx Xxxcx Xxxties shall cooperate with the Company in connection with the preparation of the Resale Registration Statement and shall furnish to the Company, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties Purchaser shall notify the Company Companies at least two business days prior to the earlier of the date on which it the Purchaser intends to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does Companies do not, within such two two-day period, advise the Merrxxx Xxxcx Xxxties Purchaser of the existence of any facts of the type referred to in Section 7.2(a7(b) (i)(E) above, then the Company Companies shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties Purchaser that no such facts then exist and the Merrxxx Xxxcx Xxxties Purchaser may rely on such certificate and representations representation in making such sales. The preceding sentence shall in no way limit the Company's Companies' obligations under Section 7.2(a7(b)(i) above.
(d) The Company shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the Company, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties is, in any event, reasonably acceptable to the Company for this purpose) and (ii) the Company shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company and other entities reasonable requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company (and, if necessary, other independent certified public accountants of any affiliate or 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 of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, and
Appears in 1 contract
Covenants in Connection With Registration. (a) The Company Each of the Companies hereby covenants with the Merrxxx Xxxcx Xxxties that (i) it such Company shall not file any Resale Registration Statement or Resale Prospectus relating to the resale of the Shares or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties and the Merrxxx Xxxcx Xxxties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does do not object within two business days of receiving any such material, there shall be deemed to have been no objection thereto); (ii) it such Company shall immediately notify the Merrxxx Xxxcx Xxxties of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it such Company shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it such Company shall immediately notify the Merrxxx Xxxcx Xxxties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it such Companies shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein 18 by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties a reasonable number of copies of a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading provided that this clause (v) shall in no way limit the Companies' right to suspend the right of the Merrxxx Xxxcx Xxxties to affect sales under the Resale Registration Statement during any Black-out Period as specified in Section 5.2 above.
(b) The Merrxxx Xxxcx Xxxties shall cooperate with the Company Companies in connection with the preparation of the Resale Registration Statement and shall furnish to the CompanyCompanies, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Paired Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties shall notify the Company Companies at least two business days prior to the earlier of the date on which it intends they intend to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does Companies do not, within such two day period, advise the Merrxxx Xxxcx Xxxties of the existence of any facts of the type referred to in Section 7.2(a) above, then the Company Companies shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties that no such facts then exist and the Merrxxx Xxxcx Xxxties may rely on such certificate and representations in making such sales. The preceding sentence shall in no way limit the Company's Companies' obligations under Section 7.2(a) above.
(d) The Company the Companies shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day two business days prior to the closing of any sale of the Shares.
(e) If either of the Companies notify the Merrxxx Xxxcx Xxxties notify that they wish the Company that MLI wishes Merrxxx Xxxcx Xxxties to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the CompanyCompanies, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties isxx, in any event, reasonably acceptable to the Company Companies for this purpose) and (ii) the Company Companies shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company Companies and other entities reasonable reasonably requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing 19 dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable reasonably requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company Companies (and, if necessary, other independent certified public accountants of any affiliate or Subsidiary of either of the Company Companies or of any business acquired by the Company Companies for which financial statements and financial data are, or are required to be, included in the Resale Registration Statement), addressed to each of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company Companies will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, andand cause the officers of the Companies and their "significant subsidiaries" (as that term is defined in Regulation S-X) to be available, upon request at least two business days in advance, to respond to questions relevant to such due diligence inquiries.
(g) The parties hereby acknowledge and agree that the Companies may suspend the right of the Merrxxx Xxxcx Xxxties to effect sales of the Paired Shares through use of the Resale Prospectus forming a part of a Resale Registration Statement for a period of 90 days (or fewer if the Merrxxx Xxxcx Xxxties are notified to that effect by the Companies) in connection with a public offering or a sale pursuant to Rule 144A under the Securities Act (an "Offering") of Paired Shares (or shares of capital stock convertible into Paired Shares) by the Companies (a "Suspension Period"); provided that (i) there shall be no more than three Suspension Periods during any 12-month period, and (ii) the total number of days of all Suspension Periods during 20 any 12-month period shall not exceed 120. The Merrxxx Xxxcx Xxxties hereby covenant that they will not sell any Paired Shares pursuant to said Resale Prospectus during a Suspension Period which shall commence at the time the Companies give the Merrxxx Xxxcx Xxxties written notice of such Suspension Period; provided further, that no Suspension Period shall be applicable or in any way restrict the Merrxxx Xxxcx Xxxties after the occurrence of the Maturity Date or a Price Decline Termination Event. The ability of the Companies to suspend the right of the Merrxxx Xxxcx Xxxties to effect sales of the Paired Shares pursuant to this Section 7.2(g) shall not be construed to limit the Companies' rights under Section 5.2.
Appears in 1 contract
Samples: Purchase Agreement (Starwood Hotel & Resorts Worldwide Inc)
Covenants in Connection With Registration. (a) The Company Each of the Companies hereby covenants with the Merrxxx Xxxcx Xxxties NMS Parties that (i) it such Company shall not file any Resale Registration Statement or Resale Prospectus relating to the resale of the Shares or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties NMS Parties and the Merrxxx Xxxcx Xxxties NMS Parties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does NMS Parties do not object within two business days of receiving any such material, there shall be deemed to have been no objection thereto); (ii) it such Company shall immediately notify the Merrxxx Xxxcx Xxxties NMS Parties of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it such Company shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it such Company shall immediately notify the Merrxxx Xxxcx Xxxties NMS Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it such Companies shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties NMS Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties NMS Parties a reasonable number of copies of a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading provided that this clause (v) shall in no way limit the Companies' right to suspend the right of the NMS Parties to affect sales under the Resale Registration Statement during any Black-out Period as specified in Section 5.2 above.
(b) The Merrxxx Xxxcx Xxxties NMS Parties shall cooperate with the Company Companies in connection with the preparation of the Resale Registration Statement and shall furnish to the CompanyCompanies, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement 18 (including, without limitation, information relating to the ownership by each of them of Common Paired Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties NMS Parties shall notify the Company Companies at least two business days prior to the earlier of the date on which it intends they intend to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does Companies do not, within such two day period, advise the Merrxxx Xxxcx Xxxties NMS Parties of the existence of any facts of the type referred to in Section 7.2(a) above, then the Company Companies shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties NMS Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties NMS Parties may rely on such certificate and representations in making such sales. The preceding sentence shall in no way limit the Company's Companies' obligations under Section 7.2(a) above.
(d) The Company the Companies shall cooperate with the Merrxxx Xxxcx Xxxties NMS Parties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties NMS Parties may reasonably request at least one Business Day two business days prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties Companies notify the Company NMS Parties that MLI wishes they wish the NMS Parties to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties NMS Parties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the CompanyCompanies, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties NMS is, in any event, reasonably acceptable to the Company Companies for this purpose) and (ii) the Company Companies shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company Companies and other entities reasonable reasonably requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties NMS Parties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties NMS Parties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable reasonably requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties NMS Parties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties NMS Parties from the independent certified public accountants of the Company Companies (and, if necessary, other independent certified public accountants of any affiliate or Subsidiary of either of the Company Companies or of any business acquired by the Company Companies for which financial statements and financial data are, or are required to be, included in the Resale 19 Registration Statement), addressed to each of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx XxxtiesNMS Parties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties NMS Parties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx XxxtiesNMS Parties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company Companies will make reasonably available for inspection by the Merrxxx Xxxcx XxxtiesNMS Parties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, andand cause the officers of the Companies and their "significant subsidiaries" (as that term is defined in Regulation S-X) to be available, upon request at least two business days in advance, to respond to questions relevant to such due diligence inquiries.
(g) The parties hereby acknowledge and agree that the Companies may suspend the right of the NMS Parties to effect sales of the Paired Shares through use of the Resale Prospectus forming a part of a Resale Registration Statement for a period of 90 days (or fewer if the NMS Parties are notified to that effect by the Companies) in connection with a public offering or a sale pursuant to Rule 144A under the Securities Act (an "Offering") of Paired Shares (or shares of capital stock convertible into Paired Shares) by the Companies (a "Suspension Period"); provided that (i) there shall be no more than three Suspension Periods during any 12-month period, and (ii) the total number of days of all Suspension Periods during any 12-month period shall not exceed 120. The NMS Parties hereby covenant that they will not sell any Paired Shares pursuant to said Resale Prospectus during a Suspension Period which shall commence at the time the Companies give the NMS Parties written notice of such Suspension Period; provided further, that no Suspension Period shall be applicable or in any way restrict the NMS Parties after the occurrence of the Maturity Date or a Price Decline Termination Event. The ability of the Companies to suspend the right of the NMS Parties to effect sales of the Paired Shares pursuant to this Section 7.2(g) shall not be construed to limit the Companies' rights under Section 5.2.
Appears in 1 contract
Samples: Purchase Agreement (Starwood Hotel & Resorts Worldwide Inc)
Covenants in Connection With Registration. (a) The Company Companies hereby covenants covenant with the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties that (i) it the Companies shall not file any Resale Registration Statement or Resale Prospectus or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties and the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does Xxxxxxx Xxxxx Parties do not object within two business days of receiving any such material, there shall be deemed to have been no objection thereto); (ii) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it the Companies shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it the Companies shall immediately notify the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be be, stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties a reasonable number of copies of a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading.
(b) The Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties shall cooperate with the Company Companies in connection with the preparation of the Resale Registration Statement and shall furnish to the CompanyCompanies, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Paired Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties shall notify the Company Companies at least two business days prior to the earlier of the date on which it intends they intend to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does Companies do not, within such two day period, advise the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties of the existence of any facts of the type referred to in Section 7.2(a) above, then the Company Companies shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties may rely on such certificate and representations in making such sales. The preceding sentence shall in no way limit the Company's Companies' obligations under Section 7.2(a) above.
(d) The Company the Companies shall cooperate with the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties to facilitate the timely preparation and mid delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties Companies notify the Company Xxxxxxx Xxxxx Parties that MLI wishes the Companies wish the Xxxxxxx Xxxxx Parties to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the CompanyCompanies, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx is, in any event, reasonably acceptable to the Company Companies for this purpose) and (ii) the Company Companies shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company Companies and other entities reasonable reasonably requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable reasonably requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable reasonably satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties from the independent certified public accountants of the Company Companies (and, if necessary, other independent certified public accountants of any affiliate or Subsidiary of either of the Company Companies or of any business acquired by the Company Companies for which financial statements and financial data are, or are required to be, included in the Resale Registration Statement), ) addressed to each of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx XxxtiesXxxxxxx Xxxxx Parties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties Xxxxxxx Xxxxx Parties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx XxxtiesXxxxxxx Xxxxx Parties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company Companies will make reasonably available for inspection by the Merrxxx Xxxcx XxxtiesXxxxxxx Xxxxx Parties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, andand cause the officers of the Companies and their "significant subsidiaries" (as that term is defined in Regulation S-X) to be available, upon request at least two business days in advance, to respond to questions relevant to such due diligence inquiries.
(g) The parties hereby acknowledge and agree that the Companies may suspend the right of the Xxxxxxx Xxxxx Parties to effect sales of the Paired Shares through use of the prospectus forming a part of a Resale Registration Statement for a period of 90 days (or fewer if the Xxxxxxx Xxxxx Parties are notified to that effect by the Companies) in connection with a public offering or a sale pursuant to Rule 144A under the Securities Act (an "Offering") of Paired Shares (or shares of capital stock convertible into Paired Shares) by the Companies (a "Suspension Period"); provided that (i) there shall be no more than three Suspension Periods during any 12-month period, and (ii) the total number of days of all Suspension Periods during any 12-month period shall not exceed 120. The Xxxxxxx Xxxxx Parties hereby covenant that they will not sell any Paired Shares pursuant to said prospectus during a Suspension Period which shall commence at the time the Companies give the Xxxxxxx Xxxxx Parties written notice of such Suspension Period; provided further, that no Suspension Period shall be applicable or in any way restrict the Xxxxxxx Xxxxx Parties after the occurrence of the Maturity Date or a Price Decline Termination Event. The ability of the Companies to suspend the right of the Xxxxxxx Xxxxx Parties to effect sales of the Paired Shares pursuant to Section 7.2(g) shall not be, construed to limit the Companies' rights under Section 5.2.
Appears in 1 contract
Samples: Purchase Agreement (Meditrust Corp)
Covenants in Connection With Registration. (a) The Company hereby covenants with the Merrxxx Xxxcx Xxxties UBS Parties that (i) it shall not file any Resale Registration Statement or Resale Prospectus or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties UBS Parties and the Merrxxx Xxxcx Xxxties UBS Parties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does UBS Parties do not object within two business days of receiving any such material, there they shall be deemed to have no objection thereto); (ii) it shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties UBS Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties a reasonable number of copies of prepare a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; provided that this clause (v) shall in no way limit the Company's right to suspend the right of the UBS Parties to effect sales under the Registration Statement during any Black-out Period as specified at Section 5.2 above.
(b) The Merrxxx Xxxcx Xxxties shall cooperate with the Company in connection with the preparation of the Resale Registration Statement and shall furnish to the Company, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties UBS Parties shall notify the Company at least two business days prior to the earlier of the date on which it intends to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does not, within such two two-day period, advise the Merrxxx Xxxcx Xxxties UBS Parties of the existence of any facts of the type referred to in Section 7.2(a7.2(a)(iv) above, then the Company shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties UBS Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties UBS Parties may rely on such certificate and representations representation in making such sales. The preceding sentence shall in no way limit the Company's obligations under Section 7.2(a) above.
(d) The Company shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the Company, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties is, in any event, reasonably acceptable to the Company for this purpose) and (ii) the Company shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company and other entities reasonable requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company (and, if necessary, other independent certified public accountants of any affiliate or 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 of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, and
Appears in 1 contract
Covenants in Connection With Registration. (a) The Company hereby covenants with the Merrxxx Xxxcx Xxxties UBS Parties that (i) it shall not file any Resale Registration Statement or Resale Prospectus or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties UBS Parties and the Merrxxx Xxxcx Xxxties UBS Parties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does UBS Parties do not object within two business days of receiving any such material, there they shall be deemed to have no objection thereto); (ii) it shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties UBS Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties a reasonable number of copies of prepare a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; provided that this clause (v) shall in no way limit the Company's right to suspend the right of the UBS Parties to effect sales under the Registration Statement during any Black-out Period as specified at Section 5.2 above.
(b) The Merrxxx Xxxcx Xxxties shall cooperate with the Company in connection with the preparation of the Resale Registration Statement and shall furnish to the Company, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties UBS Parties shall notify the Company at least two four business days prior to the earlier of the date on which it intends to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does not, within such two four-day period, advise the Merrxxx Xxxcx Xxxties UBS Parties of the existence of any facts of the type referred to in Section 7.2(a7.2(a)(iv) above, then the Company shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties UBS Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties UBS Parties may rely on such certificate and representations representation in making such sales. The preceding sentence shall in no way limit the Company's obligations under Section 7.2(a) above.
(d) The Company shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the Company, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties is, in any event, reasonably acceptable to the Company for this purpose) and (ii) the Company shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company and other entities reasonable requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company (and, if necessary, other independent certified public accountants of any affiliate or 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 of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, and
Appears in 1 contract
Covenants in Connection With Registration. (a) The Company hereby covenants with the Merrxxx Xxxcx Xxxties UBS Parties that (i) it shall not file any Resale Registration Statement or Resale Prospectus or any amendment or supplement thereto, unless a copy thereof shall have been first submitted to the Merrxxx Xxxcx Xxxties UBS Parties and the Merrxxx Xxxcx Xxxties UBS Parties did not object thereto in good faith (provided that if the Merrxxx Xxxcx Xxxties does UBS Parties do not object within two business days of receiving any such material, there they shall be deemed to have no objection thereto); (ii) it shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the issuance by the Commission of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation of any proceedings for such purpose; (iii) it shall make every reasonable effort to promptly obtain the withdrawal of any order suspending the effectiveness of such Resale Registration Statement at the earliest possible moment; (iv) it shall immediately notify the Merrxxx Xxxcx Xxxties UBS Parties of the receipt of any notification with respect to the suspension of the qualification of the Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) it shall immediately as soon as practicable notify the Merrxxx Xxxcx Xxxties UBS Parties in writing of the happening of any event or the failure of any event to occur or the existence of any fact or otherwise which results in any Resale Registration Statement, any amendment or post-post- effective amendment thereto, the Resale Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading and promptly shall prepare, file with the Commission and promptly furnish to the Merrxxx Xxxcx Xxxties a reasonable number of copies of prepare a supplement or post-effective amendment to such Resale Registration Statement or the Resale Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, the Resale Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading.
(b) The Merrxxx Xxxcx Xxxties shall cooperate with the Company in connection with the preparation of the Resale Registration Statement and shall furnish to the Company, in a timely manner, all information in their possession or reasonably obtainable by them and necessary for inclusion in the Resale Registration Statement (including, without limitation, information relating to the ownership by each of them of Common Shares and the plan of distribution). The Merrxxx Xxxcx Xxxties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
(c) The Merrxxx Xxxcx Xxxties UBS Parties shall notify the Company at least two business days prior to the earlier of the date on which it intends to commence effecting any resales of Shares under a Resale Registration Statement or the date of pricing with respect to the public sale or other disposition of any Shares under a Resale Registration Statement effected through an underwritten offering or block trade and if the Company does not, within such two day period, advise the Merrxxx Xxxcx Xxxties UBS Parties of the existence of any facts of the type referred to in Section 7.2(a7.2(a)(iv) above, then the Company shall be deemed to have certified and represented to the Merrxxx Xxxcx Xxxties UBS Parties that no such facts then exist and the Merrxxx Xxxcx Xxxties UBS Parties may rely on such certificate and representations representation in making such sales. The preceding sentence shall in no way limit the Company's obligations under Section 7.2(a) above.
(d) The Company shall cooperate with the Merrxxx Xxxcx Xxxties to facilitate the timely preparation and delivery of certificates representing the Shares to be sold under the Resale Registration Statements and not bearing any restrictive legends and in such denominations and registered in such names as the Merrxxx Xxxcx Xxxties may reasonably request at least one Business Day prior to the closing of any sale of the Shares.
(e) If either of the Merrxxx Xxxcx Xxxties notify the Company that MLI wishes to effect an underwritten offering or block trade of Shares, (i) the Merrxxx Xxxcx Xxxties shall have the right to select the managing underwriters or the executing dealer, as the case may be, who shall be subject to the approval of the Company, which approval shall not be unreasonably withheld (it being understood that the Merrxxx Xxxcx Xxxties is, in any event, reasonably acceptable to the Company for this purpose) and (ii) the Company shall (A) enter into written agreements (including underwriting agreements) as are customary in underwritten offerings or block trades, as the case may be; (B) obtain an opinion of counsel to the Company and other entities reasonable requested by the underwriters or the executing dealer, as the case may be, and updates thereof (which may be in the form of a reliance letter) in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties addressed to the underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties covering the matters customarily covered in opinions requested in underwritten offerings or block trades, as the case may be, and such other matters as may be reasonable requested by such underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (C) obtain "cold comfort" letters and updates thereof in form and substance reasonable satisfactory to the managing underwriters or the executing dealer, as the case may be, and the Merrxxx Xxxcx Xxxties from the independent certified public accountants of the Company (and, if necessary, other independent certified public accountants of any affiliate or 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 of the underwriters or the executing dealer, as the case may be, and, if permitted by applicable accounting rules and statements, the Merrxxx Xxxcx Xxxties, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings or block trades, as the case may be, and such other matters as may be reasonably requested by such underwriters or the executing dealer, as the case may be, in accordance with Statement on Auditing Standards No. 72; (D) ensure that any underwriting agreement contains indemnification provisions and procedures not less favorable than that included herein (or such other provisions and procedures acceptable to the Merrxxx Xxxcx Xxxties and the underwriters) with respect to all parties to be indemnified pursuant to said section (including, without limitation, the underwriters and the Merrxxx Xxxcx Xxxties); and (E) deliver such other documents as are customarily delivered in connection with closing of underwritten offerings or block trades, as the case may be.
(f) The Company will make reasonably available for inspection by the Merrxxx Xxxcx Xxxties, any underwriter, agent or broker-dealer participating in any disposition of Shares such information and corporate documents as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities for the purposes of applicable law, and
Appears in 1 contract
Samples: Purchase Agreement (Crescent Real Estate Equities Inc)
