CYN » Topics » Merrill Lynch

This excerpt taken from the CYN 8-K filed May 8, 2009.
Merrill Lynch”), except for the offer and sale of Lock-Up Securities pursuant to this Agreement, issuances of Lock-Up Securities pursuant to the conversion of convertible securities outstanding on the date hereof or exercise of warrants outstanding on the date hereof, grants of employee stock options, restricted stock units or other equity-based awards pursuant to the terms of a plan or similar arrangement in effect on the date hereof, sales or issuances of Lock-Up Securities required or directed by any governmental or regulatory authority, or issuances of Lock-Up Securities pursuant to the exercise of such options, restricted stock units or equity awards. The Lock-Up Period will commence on the date hereof and continue for 90 days after the date hereof or such earlier date that Credit Suisse and Merrill Lynch consent to in writing provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the materials news or material event, as applicable, unless Credit Suisse and Merrill Lynch waives, in writing, such extension. The Company will provide Credit Suisse and Merrill Lynch with notice of any announcement described in clause (2) of the preceding sentence that gives rise to an extension of the Lock-Up Period. For the avoidance of doubt, the foregoing restrictions in this Section 5(k) shall not apply to the Bank acting in its various fiduciary capacities.

     6.      Free Writing Prospectuses.   The Company represents and agrees that, unless it obtains the prior consent of Credit Suisse, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and Credit Suisse, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and Credit Suisse is hereinafter referred to as a “

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