Common use of Underwriting Due Diligence Etc Clause in Contracts

Underwriting Due Diligence Etc. (a) If requested by the underwriters for any underwritten offering of Registrable Securities pursuant to a registration requested under this Agreement, the Company will enter into an underwriting agreement with such underwriters for such offering, which, (x) in the case of a Morgan Demand, shall be in form reasonably acceptable to MSLEF II an▇ (▇) in the case of a SIBV Demand, shall be in form reasonably acceptable to SIBV, and which, in the case of a Company Registration Process, shall be in form reasonably acceptable to the Company, any such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution (provided that any indemnities and contribution shall, unless MSLEF II or the Agent (as defined below) or SIBV, as the case may be, agrees otherwise, be to the effect and only to the extent provided in Section 10 hereof) and the provision of opinions of counsel and accountants' letters to the effect and to the extent provided in Section 6(e) hereof; provided, however, the Company may negotiate and agree to differing indemnification obligations with respect to the underwriters, provided such indemnification obligations (i) do not adversely affect the Selling Holders with respect to their rights and obligations hereunder and (ii) shall not excuse the Company from entering into (or delaying the execution of) an underwriting agreement on the terms as provided herein. The Selling Holders on whose behalf the Registrable Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement, and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Selling Holders. In no event shall any Selling Holder be required to make any representation or warranty, other than as to its ownership of the Registrable Securities and as to due authorization, execution and enforceability with respect to it of the underwriting agreement. Such underwriter shall be instructed to use its reasonable best efforts to affect a wide distribution of the Common Stock so long as doing so shall not, in any manner, adversely affect the marketing (including timing) or price of such shares. The Company, if requested by MSLEF II or SIBV, as the case may be, or the underwriters, will enter into an agreement with the Independent Underwriter on customary terms. (b) In the event that any registration pursuant to Section 4 shall involve, in whole or in part, an underwritten offering, the Company may require the Registrable Securities requested to be registered pursuant to Section 4 to be included in such underwriting on the same terms and conditions as shall be applicable to the other securities being sold through underwriters under such registration. (c) In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, the Company will give the Selling Holders and the underwriters, if any, and their respective counsel and accountants, such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified the Company's financial statements as shall be necessary, in the reasonable opinion of such Selling Holder and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Selling Holders and the underwriters, if any, and their respective counsel and accountants, shall use their reasonable best efforts to coordinate and time their review so as to not unreasonably interfere with the business and operations of the Company. Such information shall be governed by confidentiality provisions comparable to those set forth in the Stockholders Agreement. (d) In the event an offering pursuant to this Agreement is not underwritten, the Company, at the request of MSLEF II or the Agent or SIBV, as the case may be, will enter into such agreements with any selling agents or similar persons as are customary. Such agreements shall contain terms and provisions analogous to those described herein and, to the extent not so described, customary terms and provisions.

Underwriting Due Diligence Etc. (a) UNDERWRITING AGREEMENT If requested by the underwriters for any underwritten offering of Registrable Securities pursuant to a registration requested under this Agreement, the Company will enter into an underwriting agreement with such underwriters for such offering, which, (x) in the case of a Morgan Demand, shall be in form reasonably acceptable to MSLEF II an▇ (▇) in the case of a SIBV Demand, shall be in form reasonably acceptable to SIBV, requesting Holder and which, in the case of a Company Registration Process, shall be in form reasonably acceptable to the Company, any such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, including indemnities and contribution (provided that provided, any indemnities and contribution shall, unless MSLEF II or the Agent (as defined below) or SIBV, as requesting Holder and the case may be, agrees Company agree otherwise, be to the effect and only to the extent provided in Section 10 5.9 hereof) and the provision of opinions of counsel and accountants' letters to the effect and to the extent provided in Section 6(e5.4(f) hereof; provided, however, the Company may negotiate and agree to differing indemnification obligations with respect to the underwriters, provided such indemnification obligations (i) do not adversely affect the Selling Holders with respect to their rights and obligations hereunder and (ii) shall not excuse the Company from entering into (or delaying the execution of) an underwriting agreement on the terms as provided herein. The Selling Holders Holder on whose behalf the Registrable Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement, and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Selling Holdersthe Holder. In no event The Company shall use reasonable efforts to prevent any Selling Holder be from being required to make any representation or warranty, other than as to its ownership of the Registrable Securities and as to the due authorization, execution and enforceability enforceability, with respect to it it, of the underwriting agreement. Such underwriter shall be instructed to use its reasonable best efforts to affect a wide distribution of the Common Stock Registrable Securities being distributed so long as doing so shall not, in any manner, adversely affect the marketing (including timing) or price of such shares. The Company, if requested by MSLEF II or SIBV, as the case may be, Requesting Holder or the underwriters, will enter into an agreement with the Independent Underwriter on customary terms. (b) In the event that any registration pursuant to Section 4 shall involve, in whole or in part, an underwritten offering, the Company may require the Registrable Securities requested to be registered pursuant to Section 4 to be included in such underwriting on the same terms and conditions as shall be applicable to the other securities being sold through underwriters under such registration. (c) In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, the Company will give the Selling Holders and the underwriters, if any, and their respective counsel and accountants, such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified the Company's financial statements as shall be necessary, in the reasonable opinion of such Selling Holder and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Selling Holders and the underwriters, if any, and their respective counsel and accountants, shall use their reasonable best efforts to coordinate and time their review so as to not unreasonably interfere with the business and operations of the Company. Such information shall be governed by confidentiality provisions comparable to those set forth in the Stockholders Agreement. (d) In the event an offering pursuant to this Agreement is not underwritten, the Company, at the request of MSLEF II or the Agent or SIBV, as the case may be, will enter into such agreements with any selling agents or similar persons as are customary. Such agreements shall contain terms and provisions analogous to those described herein and, to the extent not so described, customary terms and provisions.

Underwriting Due Diligence Etc. (a) If requested by the underwriters for any underwritten offering of Registrable Securities pursuant to a registration requested under this Agreement, the Company will enter into an underwriting agreement with such underwriters for such offering, which, (x) in the case of a Morgan Demand, shall be in form reasonably acceptable to MSLEF II an▇▇▇ (▇) in the case of a SIBV Demand, shall be in form reasonably acceptable to SIBV, and which, in the case of a Company Registration Process, shall be in form reasonably acceptable to the Company, any such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution (provided that any indemnities and contribution shall, unless MSLEF II or the Agent (as defined below) or SIBV, as the case may be, agrees otherwise, be to the effect and only to the extent provided in Section 10 hereof) and the provision of opinions of counsel and accountants' letters to the effect and to the extent provided in Section 6(e) hereof; provided, however, the Company may negotiate and agree to differing indemnification obligations with respect to the underwriters, provided such indemnification obligations (i) do not adversely affect the Selling Holders with respect to their rights and obligations hereunder and (ii) shall not excuse the Company from entering into (or delaying the execution of) an underwriting agreement on the terms as provided herein. The Selling Holders on whose behalf the Registrable Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement, and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Selling Holders. In no event shall any Selling Holder be required to make any representation or warranty, other than as to its ownership of the Registrable Securities and as to due authorization, execution and enforceability with respect to it of the underwriting agreement. Such underwriter shall be instructed to use its reasonable best efforts to affect a wide distribution of the Common Stock so long as doing so shall not, in any manner, adversely affect the marketing (including timing) or price of such shares. The Company, if requested by MSLEF II or SIBV, as the case may be, or the underwriters, will enter into an agreement with the Independent Underwriter on customary terms. (b) In the event that any registration pursuant to Section 4 shall involve, in whole or in part, an underwritten offering, the Company may require the Registrable Securities requested to be registered pursuant to Section 4 to be included in such underwriting on the same terms and conditions as shall be applicable to the other securities being sold through underwriters under such registration. (c) In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, the Company will give the Selling Holders and the underwriters, if any, and their respective counsel and accountants, such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified the Company's financial statements as shall be necessary, in the reasonable opinion of such Selling Holder and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Selling Holders and the underwriters, if any, and their respective counsel and accountants, shall use their reasonable best efforts to coordinate and time their review so as to not unreasonably interfere with the business and operations of the Company. Such information shall be governed by confidentiality provisions comparable to those set forth in the Stockholders Agreement. (d) In the event an offering pursuant to this Agreement is not underwritten, the Company, at the request of MSLEF II or the Agent or SIBV, as the case may be, will enter into such agreements with any selling agents or similar persons as are customary. Such agreements shall contain terms and provisions analogous to those described herein and, to the extent not so described, customary terms and provisions.