CREDIT SUISSE
SECURITIES (USA) LLC
As Representative of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
1.
Introductory . LoopNet, Inc., a Delaware corporation (the
“ Company ”), proposes to issue and sell shares
of its Common Stock (the “ Securities ”) and the
stockholders listed in Schedule A hereto (the “Selling
Stockholders”) propose severally to sell an aggregate of
[ ] outstanding
shares of the Securities (such
[ ] shares of
Securities being hereinafter referred to as the “Firm
Securities” ) to the several underwriters named in
Schedule A hereto (the “ Underwriters ”),
for whom Credit Suisse Securities (USA) LLC (“ Credit
Suisse ”), (the “ Representative ”).
[The Company and Selling Stockholders] also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more
than additional
shares (“ Optional Securities ”) of its
Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the “ Offered
Securities ”. The Company hereby agrees with the
Underwriters as follows:
2.
Representations and Warranties of the Company and the Selling
Stockholders .
(a) The
Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) A
registration statement (No. 333-132138) relating to the
Offered Securities, including a form of prospectus, has been filed
with the United States Securities and Exchange Commission (the
“ Commission ”) and either (i) has been
declared effective under the Securities Act of 1933, as amended
(the “ Act ”) and is not proposed to be amended
or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the
“ initial registration statement ”) has been
declared effective, either (i) an additional registration
statement (the “ additional registration statement
”) relating to the Offered Securities may have been filed
with the Commission pursuant to Rule 462(b) (“
Rule 462(b) ”) under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and the
Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable,
the additional registration statement or (ii) such
an
additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities
will all have been duly registered under the Act pursuant to the
initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if
any post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to
each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) (“ Rule 462(c) ”) under the Act or,
in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, the “ Effective Time
” with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the
additional registration statement means (i) if the Company has
advised the Representative that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if
the Company has advised the Representative that it proposes to file
an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representative that it proposes to file
one, the “ Effective Time ” with respect to such
additional registration statement means the date and time as of
which such registration statement is filed and becomes effective
pursuant to Rule 462(b). The “ Effective Date ”
with respect to the initial registration statement or the
additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be
a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including
all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to
Rule 430A(b) (“ Rule 430A(b) ”) under the
Act, is hereinafter referred to as the “ Initial
Registration Statement ”. The additional registration
statement, as amended at its Effective Time, including the contents
of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part
of the additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the
“ Additional Registration Statement ”. The
Initial Registration Statement and the Additional Registration
Statement are herein referred to collectively as the “
Registration Statements ” and individually as a
“ Registration Statement ”. The “
Registration Statement ” without reference to a time
means the Registration Statement as of its Effective Time. The
“ Registration Statement ” as of any time means
the initial registration statement and any additional registration
statement in the form then filed with the Commission, including any
amendment thereto and any prospectus deemed or retroactively deemed
to be a part thereof that has not been superseded or modified. For
purposes of the previous sentence, information contained in a form
of prospectus or prospectus supplement that is deemed retroactively
to be a part of the Registration Statement pursuant to
Rule 430A shall be considered to be included in the
Registration Statement as of the time specified in Rule 430A.
The “ Statutory Prospectus ” as of any time
means the prospectus included in the Registration Statement
immediately prior to that time, including any prospectus deemed to
be a part thereof that has not been superseded or modified. For
purposes of the preceding sentence, information contained in a form
of prospectus that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A shall be
considered to be included in the Statutory Prospectus as of the
actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b) (“ Rule 424(b) ”)
under the Act. The “ Prospectus ” means the
Statutory Prospectus that discloses the public offering price and
other final terms of the Offered Securities and otherwise satisfies
Section 10(a) of the Act. The “ Issuer Free Writing
Prospectus ” means any
2
“issuer
free writing prospectus,” as defined in Rule 433,
relating to the Offered Securities in the form filed or required to
be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to
Rule 433(g). The “ General Use Issuer Free Writing
Prospectus ” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors,
as evidenced by its being specified in a schedule to this
Agreement. The “ Limited Use Issuer Free Writing
Prospectus ” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus. “
Applicable Time ” means :00 [a/p]m (Eastern time) on
the date of this Agreement.
(ii) If
the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission (“ Rules and Regulations ”) and did
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) on the
date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, and at
each Closing Date, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact
or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 7(b) hereof.
(iii) (i) At
the time of filing the Registration Statement and (ii) at the
date of this Agreement, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405,
including (x) the Company or any other subsidiary in the
preceding three years not having been convicted of a felony or
misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405 and
(y) the Company in the preceding three years not having been
the subject of a bankruptcy petition or insolvency or similar
proceeding, not having had a registration statement be the subject
of a proceeding under Section 8 of the Act and not being the
subject of a proceeding under Section 8A of the Act in
connection with the offering of the Offered Securities, all as
described in Rule 405.
(iv) As
of the Applicable Time, neither (i) the General Use Issuer
Free Writing Prospectus(es) issued at or prior to the Applicable
Time and, the Statutory Prospectus, the information identified in
schedule (b) attached to this Agreement,
3
all considered
together (collectively, the “ General Disclosure
Package ”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(c) hereof.
(v) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Offered Securities or until any earlier date that the
Company notified or notifies Credit Suisse as described in the next
sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(i) the Company has promptly notified or will promptly notify
Credit Suisse and (ii) the Company has promptly amended or will
promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(c) hereof.
(vi) The
Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the General Disclosure
Package; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification except where the failure to be
so qualified or in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole.
(“Material Adverse Effect”).
(vii) Each
subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, in each case except where the
failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
4
(viii) The
Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(ix) Except
as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder’s fee or
other like payment in connection with this offering.
(x) Except
for the registration rights disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(xi) The
Offered Securities have been approved for quotation on the Nasdaq
National Market subject to notice of issuance.
(xii) No
consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and such as may be required under state securities
laws.
(xiii) The
execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities as herein contemplated
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (A) any statute,
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or
(B) any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, (C) or the charter
or by-laws of the Company or any such subsidiary, except with
respect to (A) and (B) above only for such breaches, violations or
defaults which individually or in the aggregate are not reasonably
likely to have a Material Adverse Effect, and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(xiv) This
Agreement has been duly authorized, executed and delivered by the
Company.
(xv) Except
as disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and material assets owned by them, in each
case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and except as disclosed
in the Prospectus, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with
no exceptions that would materially interfere with the use made or
to be made thereof by them.
5
(xvi) The
Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them,
except where the failure to so possess such certificates,
authorities or permits would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and the
company and its subsidiaries have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect .
(xvii) No
labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent that would
reasonably be expected to have a Material Adverse
Effect.
(xviii) The
Company and its subsidiaries own, possess, license or can acquire
on reasonable terms, all material trademarks, trade names and other
rights to proprietary inventions, know-how, patents, copyrights,
proprietary confidential information and other intellectual
property (collectively, “ intellectual property rights
”) necessary to conduct the business now operated by them, or
presently utilized by them, and, except as disclosed in the General
Disclosure Package or otherwise resolved, have not received any
notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect.
(xix) Except
as disclosed in the General Disclosure Package, neither the Company
nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, in either case, with
jurisdiction over the Company, any of its subsidiaries, or any of
their properties, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “ environmental laws
”), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xx) Except
as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company’s knowledge,
contemplated.
(xxi) The
financial statements, together with the related notes, included in
each Registration Statement and the General Disclosure Package
present fairly in all material respects the financial position of
the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods
shown, and such financial statements, together with the related
notes, have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis.
(xxii) Except
as disclosed in the General Disclosure Package, since the date of
the latest audited financial statements included in the General
Disclosure Package there has been no
6
material
adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the General Disclosure Package,
there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital
stock.
(xxiii) The
Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”) and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(xxiv) The
Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds thereof
as described in the General Disclosure Package, will not be an
“investment company” as defined in the Investment
Company Act of 1940.
(b) Each
Selling Stockholder severally, and not jointly, represents and
warrants to, and agrees with, the several Underwriters
that:
(i) Such
Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such
Closing Date hereunder; and upon the delivery of and payment for
the Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on
such Closing Date.
(ii) This
agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Stockholder.
(iii) Each
of the Power of Attorney and Custody Agreement, in the forms
heretofore furnished to the Representative, have each been duly
authorized, executed and delivered by such Selling Stockholder and
is the valid and binding agreement of such Selling
Stockholder.
(iv) If
the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading, (B) on the Effective
Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The two preceding sentences apply to the
extent that any statements in or omissions from a Registration
Statement or the
7
Prospectus are
based on written information furnished by such Selling Stockholder
specifically for use therein.
(v) As
of the Applicable Time, neither (i) the General Disclosure
Package, nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
applies to the extent that any statements in or omissions from the
General Disclosure Package or Limited Use Issuer Free Writing
Prospectus are based on written information furnished by such
Selling Stockholder specifically for use therein.
(vi) Except
as disclosed in the Prospectus, there are no contracts, agreements
or understandings between such Selling Stockholder and any person
that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with this
offering.
3.
Purchase, Sale and Delivery of Offered Securities . On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company and each Selling Stockholder agree, severally
and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company and
each Selling Stockholder, at a purchase price of
$ per share, that
number of Firm Securities (rounded up or down, as determined by
Credit Suisse in its discretion, in order to avoid fractions)
obtained by multiplying [
] firm Securities in the case of the Company and the number of Firm
Securities set forth opposite the name of such Selling Stockholder
in Schedule A hereto, in the case of a Selling Stockholder, in
each case by a fraction the numerator of which is the number of
Firm Securities set forth opposite the name of such Underwriter in
Schedule A hereto and the denominator of which is the total
number of Firm Securities.
Certificates in
negotiable form for the Offered Securities to be sold by the
Selling Stockholders hereunder have been placed in custody, for
delivery under this Agreement, under Custody Agreements made with
Computershare Trust Company, Inc., as custodian (the “
Custodian ”). Each Selling Stockholder agrees that the
shares represented by the certificates held in custody for the
Selling Stockholders under such Custody Agreements are subject to
the interests of the Underwriters hereunder, that the arrangements
made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling
Stockholders hereunder shall not be terminated by operation of law,
whether by the death of any individual Selling Stockholder or the
occurrence of any other event, or in the case of a trust, by the
death of any trustee or trustees or the termination of such trust.
If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if
any of such trusts should terminate, before the delivery of the
Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with
the terms and conditions of this Agreement as if such death or
other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or
other event or termination.
The Company and
the Custodian will deliver the Firm Securities to the
Representative for the accounts of the Underwriters, at the office
of [
,] against payment of the purchase price in Federal (same day)
funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse drawn to the order of
[ ] in
the case of [
]
shares of Firm Securities and to the order of [
] in
the case of [
]
shares of Firm Securities at the office of
, at
A.M., New York time, on
, or at such other time not later than seven full business days
thereafter as Credit Suisse and the Company determine, such time
being herein referred to as the “ First Closing Date
”. For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities
so to be delivered will be in definitive form, in such
denominations and registered in such names as Credit Suisse
requests and will be made available for checking and packaging at
the above office of at
least 24 hours prior to the First Closing Date.
8
In addition, upon
written notice from Credit Suisse given to the Company [and the
Selling Stockholders] from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may
purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The
Company agrees to sell to the Underwriters the number of shares of
Optional Securities specified in such notice and the Underwriters
agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the
account of each Underwriter in the same proportion as the number of
shares of Firm Securities set forth opposite such
Underwriter’s name bears to the total number of shares of
Firm Securities (subject to adjustment by Credit Suisse to
eliminate fractions) and may be purchased by the Underwriters only
for the purpose of covering over-allotments made in connection with
the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase
the Optional Securities or any portion thereof may be exercised
from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by Credit Suisse
to the Company.
Each time for the
delivery of and payment for the Optional Securities, being herein
referred to as an “ Optional Closing Date ”,
which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, are herein referred to as a
“ Closing Date ”), shall be determined by Credit
Suisse but shall be not later than five f
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