Exhibit 1.1
Execution Version
UNDERWRITING AGREEMENT
28,000,000 Shares
Class A Common Stock
BRC Inc.
UNDERWRITING AGREEMENT
D.A. DAVIDSON & CO.
8 Third Street North, Davidson Building
Great Falls, MT 59401
Ladies and Gentlemen:
BRC Inc., a Delaware public benefit corporation (the “Company”), proposes, subject to the terms and conditions
stated in this agreement (this “Agreement”), to
issue and sell to D.A. Davidson & Co. as the sole book-running underwriter (the “Underwriter”) an aggregate of 28,000,000 shares (the “Firm Shares”) of Class A common stock, par value $0.0001 per share of the Company (the “Common Stock”) and, at the election of the Underwriter, up to 4,200,000 additional shares of Common Stock (the “Optional Shares”). The Firm Shares and the Optional Shares that the Underwriter elects to purchase pursuant to Section 2 hereof are herein collectively called the “Shares”.
The Company confirms as follows its agreements with the Underwriter.
1. (I) (a) The Company represents and warrants to, and agrees with, the Underwriter that, as of the date hereof and as of the Closing Date and each Option Closing Date, if any:
(i) The Company has prepared and filed with
the United States Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (File No. 333-270727), including a prospectus, covering the
public offering and sale of certain securities of the Company, including the Shares, under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and
regulations promulgated thereunder (the “Securities Act Regulations”), which shelf registration statement has been declared effective by the Commission. Such registration
statement, as of any time, including any post-effective amendments thereto at such time, the financial statements, exhibits and any schedules thereto, the documents incorporated or deemed to be incorporated by reference therein at such time
pursuant to Item 12 of Form S-3 under the Securities Act, and including any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B of the Securities Act Regulations (“Rule 430B”), is called the “Registration Statement;” provided, that the Registration Statement without reference to a time means such
registration statement as amended by any post-effective amendment thereto as of the time of the first contract of sale of the Shares, which time shall be considered the “new effective date” of the Registration Statement with respect to the Shares
within the meaning of Rule 430B(f)(2), including the exhibits and schedules thereto as of such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the Securities
Act at such time and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B. From and after the date and time of filing of any registration statement increasing the size of the offering pursuant to Rule 462(b)
under the Securities Act Regulations (“Rule 462(b)” and such registration statement, a “Rule 462(b)
Registration Statement”), the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The prospectus, in the form first used by the Underwriter to confirm sales of the Shares or in the form first made
available to the Underwriter by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act Regulations, is referred to herein as the “Prospectus
Supplement.” The term “Base Prospectus” means the prospectus relating to the Shares, in the form in which it was filed with the Commission as part of the
Registration Statement at the time it became effective on March 30, 2023, or in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement. The term “Prospectus” means the Base Prospectus as supplemented by the Prospectus Supplement, and each prospectus in preliminary form that describes the Shares and the offering thereof and is used prior to the filing of
the Prospectus is referred to herein as a “preliminary prospectus.” The preliminary prospectus relating to the Shares that was included in the Registration Statement
immediately prior to the Applicable Time (as defined below) is hereinafter called the “Pricing Prospectus.” “Issuer
Free Writing Prospectus” means any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act Regulations (“Rule 433”)), including, without
limitation, any “free writing prospectus” (as defined in Rule 405 under the Securities Act Regulations (“Rule 405”)), relating to the Shares that is (i) required to be filed
by the Company with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”), (ii) a “road show that is a written communication”
within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the offering
thereof that does not reflect the final terms, in each case 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). As used herein, “Road Show” means a “road show” (as defined in Rule 433) relating to the offering of the Shares contemplated hereby that is a “written communication” (as defined in Rule 405).
As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Pricing Disclosure Package” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,”
“amendment” and “amend” as used herein with respect to the Registration Statement, the Pricing Disclosure Package, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein. “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act. From the time of filing of the
Registration Statement (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an
“emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”);
(ii) (1) at the respective times the
Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective and at the Closing Date (as defined herein) (and, if any Option Shares are purchased, at each Option Closing Date) (as
defined herein)), the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act and the rules and
regulations of the Commission thereunder (the “Rules and Regulations”) and did not and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, and (2) at the time the Prospectus or any amendments or supplements thereto were issued and at the Closing Date (and, if any Option Shares are
purchased, at each Option Closing Date), neither the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in clauses (1) and (2) above shall not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the
Company in writing by the Underwriter expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by the Underwriter is that described as such in Section 9(c) hereof. No order preventing or suspending the use of any Preliminary Prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission. No document has been prepared or delivered in reliance on Rule 434 under the Securities Act;
Each Preliminary Prospectus, the Pricing Prospectus, each Issuer Free Writing Prospectus and the Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the requirements of the Securities Act and the Rules and Regulations and
each Preliminary Prospectus, the Pricing Prospectus, each Issuer Free Writing Prospectus and the Prospectus delivered to the Underwriter for use in connection with this offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T;
(iii) For the purposes of this Agreement,
the “Applicable Time” is 5:00 p.m. (Eastern Time) on the date of this Agreement; the Pricing Prospectus as supplemented by the Issuer Free Writing Prospectuses, Written
Testing-the-Waters Communications (as hereinafter defined) and other documents listed in Schedule II hereto, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and each Issuer Free Writing Prospectus and/or Written Testing-the-Waters Communication listed on Schedule II
hereto conforms in all material respects with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus and/or Written Testing-the-Waters Communication, as
supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; provided, however,
that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus or Written Testing-the-Waters Communication in reliance upon and in strict conformity with information furnished in writing
to the Company by the Underwriter expressly for use therein;
(iv) At the time of filing the
Registration Statement the Company was not and is not an “ineligible issuer,” as defined under Rule 405 under the Securities Act;
(v) The Company has been duly
incorporated and is validly existing as a public benefit corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as
described in the Registration Statement, the Pricing Prospectus and the Prospectus and to enter into and perform its obligations under this Agreement, and has been duly qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure so to qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one enterprise;
(vi) Each subsidiary of the Company (each
a “Subsidiary”) has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of the jurisdiction
of its incorporation (or organization), with power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus, and has been duly qualified
as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which its owns or leases properties or conducts any business so as to require such
qualification, except where the failure so to qualify or be in good standing would not have a material adverse effect on the Company and the Subsidiaries, considered as one enterprise; all of the issued and outstanding capital stock (or other
ownership interests) of each Subsidiary has been duly and validly authorized and issued, is fully paid and non-assessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity (other than any security interest, mortgage, pledge, lien, encumbrance, claim or equity that would not have a material adverse effect on the Company and the Subsidiaries, considered as one enterprise);
(vii) The Company has an authorized
capitalization as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, and all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the descriptions thereof contained in the Registration Statement, the Pricing Prospectus and the Prospectus; and none of the issued and outstanding shares of capital stock of the Company are subject to any
preemptive or similar rights or were issued in violation of the registration requirements of the Securities Act;
(viii) The Shares to be issued and sold by
the Company to the Underwriter hereunder have been duly and validly authorized and, when issued and delivered to and paid for by the Underwriter in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and
non-assessable and will conform to the descriptions thereof contained in the Registration Statement, the Pricing Prospectus and the Prospectus; and the issuance of such Shares is not subject to any preemptive or similar rights;
(ix) This Agreement has been duly
authorized, executed and delivered by the Company;
(x) The issue and sale of the Shares to be
sold by the Company hereunder, the execution and delivery of this Agreement by the Company and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not (A)
conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, (B) result in any violation of the provisions of the certificate
or articles of incorporation or by-laws (or other organization documents) of the Company or any of the Subsidiaries or (C) result in the violation of any statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their properties, except as would not, in the case of (A) or (C),
individually or in the aggregate, reasonably be expected to result in a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Company and the
Subsidiaries, considered as one enterprise; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares to be sold by the
Company hereunder or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Securities Act of the offering, issuance and sale of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriter;
(xi) Ernst & Young LLP, who have
audited certain financial statements of the Company and the Subsidiaries, are independent public accountants registered with the Public Company Accounting Oversight Board as required by the Securities Act and the Rules and Regulations. The
financial statements, together with related schedules and notes, included in the Registration Statement, the Pricing Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and present fairly the
consolidated financial position, results of operations and changes in financial position of the Company and the Subsidiaries on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved, except as disclosed therein; and the
selected financial data and the summary financial data included in the Registration Statement, the Pricing Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the
financial statements included in the Registration Statement;
(xii) Neither the Company nor any
Subsidiary has sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, (1) there has not been any material change in the capital stock or long-term debt of the Company or any of the Subsidiaries considered as one enterprise, (2) there has not been any material adverse change, or
any development that would reasonably be expected to result in a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the
Company and the Subsidiaries, considered as one enterprise, (3) there have been no transactions entered into by, and no obligations or liabilities, contingent or otherwise, incurred by the Company or any of the Subsidiaries, whether or not in the
ordinary course of business, which are material to the Company and the Subsidiaries, considered as one enterprise or (4) there has been no dividend or distribution of any kind declared, paid or made by the Company on any of its capital stock, in
each case, otherwise than as set forth or contemplated in the Pricing Prospectus;
(xiii) Neither the Company nor any of the
Subsidiaries is (1) in violation of its certificate or articles of incorporation or bylaws (or other organization documents) or (2) in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or
any of the Subsidiaries, or (3) in violation of any decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries, or (4) in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, except, in the case of clauses (2), (3) and (4),
where any such violation or default, individually or in the aggregate, would not have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the
Company and the Subsidiaries, considered as one enterprise;
(xiv) Each of the Company and each
Subsidiary has good and marketable title to all real and personal property owned by it, in each case free and clear of all liens, encumbrances and defects except such as are described in the Pricing Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any Subsidiary; and any real property and buildings held under lease by the Company or any Subsidiary are held under
valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or any Subsidiary;
(xv) Other than as set forth in the
Pricing Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiaries is a party or of which any property of the Company or any of the Subsidiaries is the subject which, if determined adversely
to the Company or the Subsidiary, individually or in the aggregate, would have or may reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or
results of operations of the Company and the Subsidiaries, considered as one enterprise, or would prevent or impair the consummation of the transactions contemplated by this Agreement, or which are required to be described in the Registration
Statement or the Pricing Prospectus; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others;
(xvi) The Company and the Subsidiaries (i)
possess all permits, licenses, approvals, consents and other authorizations (collectively, “Permits”) issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the businesses now operated by them and as disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus and (ii) are in compliance with the terms and conditions of all such Permits and
all of the Permits are valid and in full force and effect, except, in each case, where the failure so to comply or where the invalidity of such Permits or the failure of such Permits to be in full force and effect, individually or in the
aggregate, would not have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise; and
neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or material modification of any such Permits;
(xvii) The Company and the Subsidiaries, to
the Company’s knowledge, own or possess, or can acquire on reasonable terms, all licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names, patents and patent rights (collectively “Intellectual Property”) material to carrying on their businesses as described
in the Registration Statement, the Pricing Prospectus or the Prospectus, and neither the Company nor any Subsidiary has received any correspondence relating to any Intellectual Property or notice of infringement of or conflict with asserted
rights of others with respect to any Intellectual Property which would render any Intellectual Property invalid or inadequate to protect the interest of the Company and the Subsidiaries and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would have or may reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, financial
position, stockholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise;
(xviii) No material labor dispute with the
employees of the Company or the Subsidiaries exists, or, to the knowledge of the Company, is imminent. The Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, individually or in the aggregate, may reasonably be expected to result in a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity
or results of operations of the Company and the Subsidiaries, considered as one enterprise;
(xix) The Company and the Subsidiaries are
insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any Subsidiary has been refused any
insurance coverage sought or applied for; and the Company has no reason to believe that either it or any Subsidiary will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the Company and the Subsidiaries, considered as one enterprise;
(xx) The Company and each of its
Subsidiaries have made and keep books, records and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles and includes those policies and procedures that (1) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries; (2)
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles in the United States, and that receipts and expenditures of the
Company and its Subsidiaries are being made only in accordance with authorizations of management and directors of the Company and its Subsidiaries; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the assets of the Company and its Subsidiaries that could have a material effect on the financial statements;
(xxi) Since the date of the latest audited financial statements included in the Pricing Prospectus, (a) the Company has not been advised of
(1) any significant deficiencies in the design or operation of internal controls that could adversely affect the ability of the Company and each of its Subsidiaries to record, process, summarize and report financial data, or any material weaknesses
in internal controls and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of its Subsidiaries, and (b) since that date, there has been no
change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;
(xxii) The Company has established and will
maintain disclosure controls and procedures (as such term is defined in Rule 13a-15 (e) of the Exchange Act, which (i) are designed to ensure that information relating to the Company is made known to the Company's principal executive officer and
its principal financial officer by others within the Company, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared, and (ii) are effective in all material respects to perform the
functions for which they were established;
(xxiii) All United States federal income tax
returns of the Company and the Subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or
will be promptly taken and as to which adequate reserves have been provided. The Company and the Subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law,
except insofar as the failure to file such returns, individually or in the aggregate, would not result in a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of
operations of the Company and the Subsidiaries, considered as one enterprise, and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company or any Subsidiary except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company and the Subsidiaries in respect of any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined;
(xxiv) There are no documents or contracts of
a character required to be described in the Registration Statement or the Pricing Prospectus or to be filed as an exhibit to the Registration Statement which are not described or filed as required. The agreements and documents described in the
Pricing Disclosure Package, the Prospectus and the Registration Statement conform to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act and the Regulations to be described
therein or to be filed with the Commission as exhibits to the Registration Statement that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it
is or may be bound or affected and (a) that is referred to in the Pricing Disclosure Package or the Prospectus, or (b) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and
effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (1) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (2) as enforceability of any indemnification or contribution provision may be limited under the federal or state securities laws, and (3) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. None of such agreements or instruments has been
assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would
constitute a default thereunder. Performance by the Company of the material provisions of such agreements or instruments will not result in a material violation of any existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations;
(xxv) Neither the Company nor any of the
Subsidiaries is in violation of any statute or any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, production, 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, individually or in the aggregate, would have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the
Company and the Subsidiaries, considered as one enterprise; and the Company is not aware of any pending investigation which might lead to such a claim;
(xxvi) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company or any
Subsidiary for employees or former employees of the Company and its affiliates has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and
the Internal Revenue Code of 1986, as amended (the “Code”), except to the extent that failure to so comply, individually or in the aggregate, would not have a material
adverse effect on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise. No prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code has occurred with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption;
(xxvii) Neither the Company nor any of its Subsidiaries, or any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its Subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds, (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback or
other unlawful payment;
(xxviii) The Company is not, and, to the
Company’s knowledge, none of its directors, officers, agents or employees purporting to act on behalf of the Company are currently the target of or reasonably likely to become the target of any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently the target of any U.S. sanctions administered by
OFAC.
(xxix) There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications;
(xxx) There are no persons with
registration rights or other similar rights that are required to be allowed to participate in this offering;
(xxxi) The Company is not and, after giving
effect to the offering and sale
of the Shares as contemplated herein and the application of the net proceeds therefrom as described in the Pricing Prospectus, will not be an “investment company”, as
such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xxxii) The Company has not distributed and,
prior to the later to occur of the Closing Date (as defined in Section 4 hereof) and completion of distribution of the Shares, will not distribute any offering materials in connection
with the offering and sale of the Shares, other than the Pricing Prospectus, the Prospectus and, subject to compliance with Section 6 hereof, any Issuer Free Writing Prospectus; and the
Company has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale of the Shares. The Company (a) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Underwriter with entities that are qualified
institutional buyers within the meaning of Rule 144A under the Securities Act or with institutions that are accredited investors within the meaning of Rule 501(a) under the Securities Act and (b) has not authorized anyone other than the
Underwriter to engage in Testing-the-Waters Communications. The Company reconfirms that the Underwriter has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written
Testing-the-Waters Communications other than those listed on Schedule II hereto;
(xxxiii) The statistical and market and
industry-related data included in the Pricing Prospectus and the Prospectus are based on or derived from sources which the Company believes to be reliable and accurate or represent the Company’s good faith estimates that are made on the basis of
data derived from such sources, and the Company has obtained the written consent to the use of such data from sources to the extent required;
(xxxiv) Except as disclosed in the Registration
Statement, the Pricing Prospectus and the Prospectus, there are no business relationships or related party transactions involving the Company or any other person required to be described in the Prospectus that have not been described as required.
(xxxv) The qualifications of the persons
serving as board members and the overall composition of the board comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules of the New York Stock Exchange (“NYSE”). At least one member of the Board of Directors of the Company qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated
thereunder and the rules of the NYSE. In addition, at least a majority of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of the NYSE.
(xxxvii) The Company owns or has a valid right
to access and use all computer systems, networks, hardware, software, databases, websites and equipment used to process, store, maintain and operate data, information and functions necessary for the conduct of its business (the “Company IT Systems”), except where the failure to own or have the right to access the Company IT Systems would not reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise. The Company IT Systems are adequate for, and operate and
perform in all material respects as required in connection with, the operation of the business of the Company as currently conducted except as would not be reasonably expected, individually or in the aggregate, to have a material adverse effect
on the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise.
(xxxviii) (1) Except as described in the
Preliminary Prospectus, the Prospectus and the Registration Statement, there has been no security breach or incident, unauthorized access or disclosure, or other compromise of any of the Company’s or its Subsidiaries’ information technology and
computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and its
Subsidiaries) and any such data processed or stored by third parties on behalf of the Company and its Subsidiaries, equipment or technology (collectively, “IT Systems and Data”),
that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (B) neither the Company nor its Subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could
result in, any security breach, unauthorized access or disclosure or other compromise to their IT Systems and Data that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (C) the Company and its
Subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with
industry standards and practices, or as required by applicable regulatory standards. The Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access,
misappropriation or modification, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(xxxix) (1) Except as described in the
Preliminary Prospectus, the Prospectus and the Registration Statement, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or, to the
Company’s knowledge, any of its officers or directors with respect to the sale of the securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its shareholders that may
affect the Underwriter’s compensation, as determined by FINRA;
(2) Except as described in the Pricing Prospectus, the Prospectus and the Registration Statement, the Company has not made any direct or indirect
payments (in cash, securities or otherwise) to: (x) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to
the Company; (y) to any FINRA member; or (z) to the Company’s knowledge, to any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the twelve months prior to the date of this Agreement, other
than payments to the Underwriter as provided hereunder in connection with the offering of the Shares hereunder.
(3) None of the net proceeds of the offering of the Shares hereunder will be paid by the Company to any participating FINRA member or its affiliates,
except as specifically authorized herein.
(4) To the Company’s knowledge, no officer, director or any beneficial owner of ten percent or more of the Company’s unregistered securities has any
direct or indirect affiliation or association with any FINRA member (as determined in accordance with the rules and regulations of FINRA) except as disclosed by the Company to the Underwriter or as set forth in the Registration Statement. The Company
will advise the Underwriter if it learns that any officer, director or owner of ten percent or more of the Company’s outstanding shares of Common Stock (or securities convertible into shares of Common Stock) is or becomes an affiliate or associated
person of a FINRA member participating in the offering of the Shares hereunder.
(xxxx) [RESERVED]; and
(xxxxi) Any certificate signed by any officer of
the Company delivered to the Underwriter or to counsel for the Underwriter shall be deemed a representation and warranty by the Company to the Underwriter as to the matters covered thereby.
2.
Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and sell
to the Underwriter, and the Underwriter agrees, to purchase from the Company, at a purchase price per share of $1.175, the number of the Firm Shares set forth opposite the name of the Underwriter in
Schedule
I hereto; provided however that the Underwriter agrees, to purchase from the Company, at a purchase price per share of $1.225, the number of the Firm Shares listed on
Schedule I(a)
to be sold by the Underwriter to certain insiders of the Company and (b) in the event and to the extent that the Underwriter shall exercise the election to purchase the Optional Shares as provided below, the Company agrees to issue and sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of the Optional Shares as to which such election shall have been exercised (to
be adjusted by the Underwriter so as to eliminate fractional shares).
The Company hereby grants the Underwriter the right to purchase at
their election up to 4,200,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of
covering sales of Shares in excess of the number of the Firm Shares, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the
Firm Shares but not payable on the Optional Shares. Any such election to purchase the Optional Shares may be exercised only by written notice from the Underwriter to the Company, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of the Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by the Underwriter but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Underwriter and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by the Underwriter of the release of the Firm Shares, the Underwriter proposes to offer the Firm Shares
for sale upon the terms and conditions set forth in the Pricing Prospectus and the Prospectus.
4. (a) The Shares to be purchased by the Underwriter hereunder, in definitive or book-entry form, and in such authorized
denominations and registered in such names as the Underwriter may request upon at least 48 hours’ prior notice to the Company shall be delivered by or on behalf of the Company to the Underwriter, through the facilities of the Depository Trust Company
(“DTC”) for the accounts of the Underwriter, against payment of the purchase price therefor in Federal (same day) funds by wire transfer drawn to the Company at the office of
Akerman LLP, 633 West Fifth Street, Suite 6400, Los Angeles, California 90071, at 10:00 a.m., or by electronic exchange of executed documents, New York time, on July 18, 2025, or at such other time not later than two full business days thereafter as
the Underwriter and the Company determine, such time being herein referred to as the “Closing Date”. The Company and the Attorneys may agree upon in writing, and, with respect to
the Optional Shares, 10:00 a.m., New York City time, on the date specified by the Underwriter in the written notice given by the Underwriter’s election to purchase such Optional Shares, or such other time and date as the Underwriter and the Company
may agree upon in writing being herein referred to as an “Option Closing Date”. Such time and date for delivery of the Firm Shares is herein called the “First Time of Delivery”, such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the “Second
Time of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof,
including the cross receipt for the Shares and any additional documents requested by the Underwriter pursuant to Section 8(l) hereof, will be delivered at the offices of Akerman LLP, 633 West Fifth Street, Suite 6400, Los Angeles, California 90071
(the “Closing Location”), and the Shares will be delivered at the office of DTC or its designated custodian, all at such Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery which shall be disapproved by the Underwriter promptly after reasonable notice thereof; to advise the Underwriter, if prior to the last
Time of Delivery, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish the
Underwriter with copies thereof; to file promptly all materials required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise the Underwriter, if prior to the last Time of Delivery, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose or pursuant to Section 8A of the Act against the Company, or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to the
Shares or suspending any such qualification prior to the last Time of Delivery, to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Shares for offering
and sale under the securities laws of such jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation (where not otherwise required), subject itself to taxation for doing business in any jurisdiction in
which it is not otherwise subject to taxation or to file a general consent to service of process in any jurisdiction (where not otherwise required);
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement (or such
later time as may be agreed by the Company and the Underwriter) and from time to time, to furnish the Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as the Underwriter may reasonably request, and,
if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale
of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Act, to notify the Underwriter and upon the Underwriter's request to prepare and
furnish without charge to any dealer in securities as many written and electronic copies as the Underwriter may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and in case the Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon the Underwriter's request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many written and
electronic copies as the Underwriter may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders (which may be satisfied by filing with the Commission’s Electronic Data
Gathering Analysis and Retrieval System (“EDGAR”)), as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e)(1) During the period beginning from the date hereof and continuing to and including the date 90
days after the date of the Prospectus (such period, the “
Lock-Up Period”), not to (i) offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with or confidentially submit to the Commission a registration statement under the Act relating to, any securities of the Company
that are substantially similar to the Shares, including, but not limited to, any options or warrants to purchase shares of Common Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common
Stock or any such substantially similar securities, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of Common Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior
written consent of the Underwriter;
provided,
however, that the foregoing restrictions shall not apply
to: (A) Shares to be sold hereunder; (B) the issuance by the Company of common stock upon the exercise of stock options or the vesting and settlement of restricted stock units outstanding as of the date of this Agreement or the award of stock
options, restricted stock units or restricted stock pursuant to the Company’s equity plans that are described in the Pricing Prospectus and Prospectus; (C) the issuance by the Company of shares of Common Stock or securities convertible into,
exchangeable for or that represent the right to receive shares of Common Stock in connection with (I) the acquisition by the Company or any of its subsidiaries of the securities, businesses, technology, property or other assets of another person or
entity or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition, and the issuance of any such securities pursuant to any such agreement, or (II) the Company’s commercial relationships and other strategic
relationships; (D) the filing of any registration statement on Form S-8 relating to the securities granted or to be granted pursuant to (I) the Company’s equity plans that are described in the Pricing Prospectus and Prospectus or (II) any assumed
employee benefit plan contemplated by clause (C); or (E) the issuance by the Company of Common Stock or securities convertible into, exchangeable for, or that represent the right to receive shares of Common Stock in connection with the settlement of
any claims or litigation; provided,
that the aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to clauses (C) and
(E) shall not exceed in the aggregate 5% of the total number of shares of common stock of the Company outstanding immediately following the issuance of the Shares contemplated by this Agreement; and
provided further,
that in the case of clauses (A) through (C), the
Company shall cause each recipient of such securities to execute and deliver to the Underwriter, on or prior to the issuance of such securities, a lock-up agreement
in substantially the form attached as
Exhibit B hereto, provided that such lock-up agreement shall only be required if the recipient of such securities is a member of the Company’s board of directors, an executive officer or a
beneficial holder of 10.0% of the capital stock of the Company and the Company shall enter stop transfer instructions with the Company’s transfer agent and registrar on such securities, which the Company agrees it will not waive or amend without the
prior written consent of the Underwriter.
(f) During a period of three years from the effective date of the Registration Statement, so long as the Company is subject to
the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail, provided that
no reports, documents or other information need to be furnished pursuant to this Section 5(f) to the extent that they are available on EDGAR or the provision of which would require disclosure by the Company under Regulation FD;
(g) During a period of three years from the effective date of the Registration Statement, so long as the Company is subject to
the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, to furnish to the Underwriter copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to the Underwriter (i) as
soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which the Company's securities are listed; and (ii) such additional information concerning the
business and financial condition of the Company as the Underwriter may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission), provided that no reports, documents or other information need to be furnished pursuant to this Section 5(g) to the extent that they are available on EDGAR;
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the
Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the Exchange;
(j) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(l) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter an electronic version of the
Company’s trademarks, service marks and corporate logo for use on the website, if any, operated by the Underwriter for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that the License shall be used solely for the purpose
described above, is granted without any fee and may not be assigned or transferred;
(m) To promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of
(i) completion of the distribution of the Shares within the meaning of the Act and (ii) the last Time of Delivery;
(n) To deliver to the Underwriter (or its agent), on or prior to the date of execution of this Agreement, a properly completed
and executed Certification Regarding Beneficial Owners of Legal Entity Customers (the “Certification”), together with copies of identifying documentation, in respect of the
Company and each beneficial owner of 10% or more of the Company’s outstanding share capital, satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network, and the Company undertakes to provide such
additional supporting documentation as the Underwriter may reasonably request in connection with the verification of the foregoing Certification; and
(o) To not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Common Stock.
6. (a) The Company represents and agrees that, without the prior consent of the Underwriter, it has not made and will not make
any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free
Writing Prospectus, including timely filing with the Commission or retention where required and legending; and the Company represents that it has satisfied and agrees that it
will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus or Written Testing-the-Waters
Communication any event occurred or occurs as a result of which such Issuer Free Writing Prospectus or Written Testing-the-Waters Communication would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Underwriter an Issuer Free Writing Prospectus, Written Testing-the-Waters Communication or other document which will correct such conflict, statement or omission; provided, however, that this covenant shall not apply to any statements or omissions in an Issuer Free Writing Prospectus or Written Testing-the-Waters
Communication made in reliance upon and in conformity with Underwriter Information;
(d) The Company represents and agrees that (i) it has not engaged in, or authorized any other person to engage in, any
Testing-the-Waters Communications, other than Testing-the-Waters Communications with the prior consent of the Underwriter with entities that the Company reasonably believes are qualified institutional buyers as defined in Rule 144A under the Act or
institutions that are accredited investors as defined in Rule 501(a) under the Act; and (ii) it has not distributed, or authorized any other person to distribute, any Written Testing-the-Waters Communications, other than those distributed with the
prior consent of the Underwriter that are listed on Schedule II(c) hereto; and the Company reconfirms that the Underwriter has been authorized to act on its behalf in engaging in
Testing-the-Waters Communications;
(e) The Underwriter represents and agrees that:
(i) any Testing-the-Waters Communications undertaken by it were with entities that the Underwriter reasonably
believes are qualified institutional buyers as defined in Rule 144A under the Act or institutions that are accredited investors as defined in Rule 501(a) under the Act and
(ii) it has not distributed, or authorized any other person to distribute, and will not distribute, or
authorize any other person to distribute, any Written Testing-the-Waters Communication, other than those distributed with the prior written authorization of the Company.
7. (a) The Company covenants and agrees with the Underwriter that the Company shall be responsible for and bear all expenses
directly and necessarily incurred in connection with this offering, including but not limited to the charges of the Company's counsel and accountants; the cost of preparing, printing and filing with the SEC the registration statement and amendments,
post effective amendments, and supplements thereto; any NYSE related costs; the costs related to any blue sky or related fees and charges, including reasonable fees incurred by Underwriter's counsel in conjunction with blue sky legal work; preparing,
printing and delivering all underwriting and selling documents; online data room fees; costs incurred by Company personnel for travel and related costs in conjunction with roadshow and investor presentations; and fees and disbursements of the
transfer agents. The Company shall also be responsible for up to $150,000 for the reasonable and documented expenses actually incurred by the Underwriter in connection with this offering, including those of Underwriter’s legal counsel prior to the
earlier of the termination of the engagement letter related to this offering and the closing of this offering.
8. The obligations of the Underwriter hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in
their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Applicable Time and such Time of Delivery, true and correct, the condition that the Company shall have
performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within
the applicable time period prescribed for such filing by the Rules and Regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been
filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Act shall
have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Pricing Prospectus, Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have been complied with to the Underwriter's reasonable satisfaction;
(b) Akerman LLP, counsel for the Underwriter, shall have furnished to the Underwriter such written opinion
and 10b-5 statement, dated such Time of Delivery, in form and substance satisfactory to you, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Kirkland & Ellis LLP, counsel for the Company, shall have furnished to the Underwriter their written
opinion and negative assurance letter dated such Time of Delivery, in form and substance satisfactory to the Underwriter;
(d) On the date of this Agreement, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Ernst & Young LLP shall have furnished to the Underwriter a letter or letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to the Underwriter;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the
capital stock (other than as a result of (A) the exercise (including any “net” or “cashless” exercises) or vesting, if any, of stock options or the award, if any, of stock options, restricted stock units or restricted stock pursuant to the
Company’s equity plans that are described in the Pricing Prospectus and the Prospectus, (B) the issuance, if any, of stock upon conversion of Company securities as described in the Pricing Prospectus and the Prospectus, or (C) the repurchase of
shares of capital stock upon termination of the holder’s employment or service with the Company pursuant to agreements providing for an option to repurchase or a right of first refusal on behalf of the Company) or long-term debt of the Company or
any of its subsidiaries or any change or effect, or any development involving a prospective material adverse change or effect, in or affecting (x) the business, properties, general affairs, management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Pricing Prospectus, or (y) the ability of the Company to perform its obligations under this Agreement, including the issuance
and sale of the Shares, or to consummate the transactions contemplated in the Pricing Prospectus and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Underwriter's judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus;
(f) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on NYSE; (ii) a suspension or material limitation in trading in the Company’s securities on NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New
York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the Underwriter's judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus
and the Prospectus;
(g) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to notice of
issuance, on the Exchange;
(h) The Company shall have obtained and delivered to the Underwriter executed copies of the “Lock-Up
Agreement” in the form attached as Exhibit A, from the persons listed on Schedule III hereto;
(i) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the
furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;
(j) The Company shall have furnished or caused to be furnished to the Underwriter at such Time of Delivery
certificates of officers of the Company, satisfactory to the Underwriter, as to the accuracy of the representations and warranties of the Company, herein at and as of such Time of Delivery, as to the performance by the Company of all of their
respective obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section 8 and as to such other matters as the Underwriter may reasonably request;
(k) The Company shall have furnished to the Underwriter a certificate of its chief financial officer as to
the accuracy of certain financial data contained in the Pricing Disclosure Package and the Prospectus, dated the respective dates of delivery thereof and addressed to the Underwriter, in form and substance satisfactory to the Underwriter; and
(l) The Company shall have furnished to the Underwriter such further certificates and documents as the
Underwriter may reasonably request.
9. (a) The Company agrees to indemnify and hold harmless the Underwriter, each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, and each affiliate of the Underwriter within the meaning of Rule 405 under the Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of, or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Pricing Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Act, any Company
information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Act, any “road show” as defined in Rule 433(h) under the Act (a “road show”),
the Prospectus or any amendment or supplement thereto, or any Testing-the-Waters Communication or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with the Underwriter Information.
(b) [Reserved].
(c) The Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company,
the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from
the Company to the Underwriter, but only with reference to information relating to the Underwriter Information furnished to the Company expressly for use in the Registration Statement, any preliminary prospectus, the Pricing Prospectus, any issuer
free writing prospectus, road show or the Prospectus or any amendment or supplement thereto. As used in this Agreement with respect to an Underwriter and an applicable document, “Underwriter
Information” shall mean the written information furnished to the Company by the Underwriter expressly for use therein; it being understood and agreed upon that the only such information furnished by the Underwriter consists of the following
information in the Prospectus furnished on behalf of the Underwriter: the concession figures appearing under the caption “Underwriting – Underwriting Discounts,” and the information contained under the captions “Underwriting – Price Stabilization,
Short Positions, and Penalty Bids” and “Underwriting – Affiliations.”
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 9(a) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought
(the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would, in the reasonable
opinion of counsel to such indemnified party, be inappropriate due to actual differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i) the reasonably incurred fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriter and all persons, if any, who control the
Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act or who are affiliates of the Underwriter within the meaning of Rule 405 under the Act, and (ii) the reasonably incurred fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriter and such control persons and affiliates of the Underwriter, such firm shall be designated in writing by the Underwriter. In the case of
any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent (not to be unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party (which shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. In no event shall an indemnifying party be
responsible for any special, indirect or consequential damages incurred by an indemnified party.
(e) To the extent the indemnification provided for in Section 9(a) or 9(c) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties
on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause
9(e)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other hand in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriter, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares underwritten by the Underwriter. The relative fault of the Company on the one hand and the Underwriter on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriter and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) [Reserved].
(g) The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Underwriter, any person controlling the
Underwriter or any affiliate of the Underwriter, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
10. If the Underwriter
defaults in its obligations to purchase Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of Shares that the Underwriter agreed but failed to purchase does not exceed 10% of the total number of Shares that the
Underwriter is obligated to purchase on such Closing Date or Option Closing Date, as the case may be, the Underwriter may make arrangements satisfactory to the Company for the purchase of such Shares by other persons. If the Underwriter so defaults
and the aggregate number of Shares with respect to which such default occurs exceeds 10% of the total number of Shares that the Underwriter is obligated to purchase on such Closing Date or Option Closing Date, as the case may be, and arrangements
satisfactory to the Underwriter and the Company for the purchase of such Shares by other persons are not made within 36 hours after such default, this Agreement will terminate, subject to the provisions of Section 12, without liability on the part
of the Company, except as provided in Section 11. Nothing herein will relieve the Underwriter from liability for any default by the Underwriter.
(b) In the event of any such default which does not result in a termination of this Agreement, either the Underwriter or the
Company shall have the right to postpone the Closing Date or the relevant Option Closing Date, as the case may be, for a period not exceeding seven days, in order to effect any required changes to the Registration Statement or Prospectus or any other
documents or arrangements. As used in this Agreement, the term “Underwriter” includes any person substituted for the Underwriter under this Section 10.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company and the Underwriter,
as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of the
Underwriter or any controlling person of the Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall then not be under any liability to the
Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, any Shares are not delivered by or on behalf of the Company as provided herein or the Underwriter declines to purchase the Shares for any reason permitted under
this Agreement, the Company, will reimburse the Underwriter for all reasonable and documented out-of-pocket expenses, not to exceed $150,000, including fees and disbursements of counsel, reasonably incurred by the Underwriter in making preparations
for the purchase, sale and delivery of the Shares not so delivered, but the Company shall then be under no further liability to the Underwriter except as provided in Sections 7 and 9 hereof.
13. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriter shall be delivered
or sent by mail, telex, facsimile transmission, electronic mail or otherwise by electronic transmission to the Underwriter in care of D.A. Davidson & Co., 757 Third Ave, Suite 1902, New York, NY 10017 Attention: Timothy Monfort;
tmonfort@dadco.com. Notices to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that notices under subsection 5(e) shall be in writing, and if to the Underwriter shall be delivered or sent by mail, telex,
facsimile transmission, electronic mail or otherwise by electronic transmission to the Underwriter at D.A. Davidson & Co., 757 Third Ave, Suite 1902, New York, NY 10017 Attention: Timothy Monfort; tmonfort@dadco.com. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the
Underwriter is required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will
allow the Underwriter to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriter, the Company and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company, or the Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from the Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and the Underwriter, on the other, (ii) in connection therewith and with the process leading to such transaction the Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) the Underwriter has not assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the
Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors
to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriter, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such
transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the
Underwriter, or any of them, with respect to the subject matter hereof.
18. This Agreement and any transaction contemplated by this
Agreement and any claim, controversy or dispute arising under or related thereto shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflict of laws that would result in the
application of any other law than the laws of the State of New York. The Company agrees that any suit or proceeding arising in respect of this Agreement or any transaction contemplated by this Agreement will be tried exclusively in the U.S.
District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City of New York, Borough of Manhattan and the Company agrees to submit to the jurisdiction of, and
to venue in, such courts.
19. The Company and the Underwriter hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and
state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the Underwriter imposing
any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws.
For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
22. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that the Underwriter is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer from the Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that the Underwriter is a Covered Entity or a BHC Act Affiliate of the Underwriter becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special
Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) As used in this section:
“BHC Act Affiliate” has the meaning assigned to the term
“affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in,
and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the
Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing is in accordance with your understanding, please sign and return to us counterparts hereof, and upon the
acceptance hereof by the Underwriter, this letter and such acceptance hereof shall constitute a binding agreement between of the Underwriter and the Company.
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Very truly yours,
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BRC INC.
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By:
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/s/ Matthew Amigh
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Name: Matthew Amigh
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Title: Chief Financial Officer
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Accepted as of the date hereof:
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D.A. DAVIDSON & CO.
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By:
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/s/ Gary Morabito
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Name: Gary Morabito
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Title: Managing Director
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SCHEDULE I
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Underwriters
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Total Number of Firm Shares
to be Purchased
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Number of Optional Shares to be Purchased if Maximum Option Exercised
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D.A. Davidson & Co
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28,000,000*
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4,200,000
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* Including the shares set forth on Schedule I(a).
SCHEDULE I(a)
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Total Number of Firm Shares
to be Purchased
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Number of Optional Shares to be Purchased if Maximum Option Exercised
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Certain Insiders
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6,676,000
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0
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SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
None.
(b) Information other than the Pricing Prospectus that comprise the Pricing Disclosure Package:
The Public Offering Price for the Shares is $1.25.
The number of Shares purchased by the Underwriter is 28,000,000 (excluding 4,200,000 Optional Shares).
(c) Written Testing-the-Waters Communications:
SCHEDULE III
Parties to Lock-Up Agreements
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15. |
Engaged Capital Flagship Master Fund, LP and Welling Family Trust
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16. |
Stephen and Heather Kadenacy Family Trust
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EXHIBIT A
lock-up agreement
BRC INC.
1144 South 500 West
Salt Lake City, UT 84101
D.A. DAVIDSON & CO.
8 Third Street North, Davidson Building
Great Falls, MT 59401
Ladies and Gentlemen:
The undersigned refers to the proposed Underwriting Agreement (the “Underwriting
Agreement”) among BRC Inc., a Delaware public benefit corporation (the “Company”), and D.A. Davidson & Co. as the sole book-running underwriter (the “Underwriter”). As an inducement to the Underwriter to execute the Underwriting Agreement in connection with the proposed public offering of shares of the Company’s common stock, par
value $0.0001 per share (the “Common Stock”), pursuant to a Registration Statement on Form S-3, the undersigned hereby agrees that from the date hereof and until 90 days after
the public offering date set forth on the final prospectus used to sell the Common Stock (the “Public Offering Date”) pursuant to the Underwriting Agreement (such 90-day period
being referred to herein as the “Lock-Up Period”), the undersigned will not (and will cause any spouse or immediate family member of the spouse or the undersigned living in the
undersigned’s household, any partnership, corporation or other entity within the undersigned’s control, and any trustee of any trust that holds Common Stock or other securities of the Company for the benefit of the undersigned or such spouse or
family member not to) offer, sell, contract to sell (including any short sale), pledge, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, grant any
option, right or warrant for the sale of, purchase any option or contract to sell, sell any option or contract to purchase, or otherwise encumber, dispose of or transfer, or grant any rights with respect to, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether any such aforementioned transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, or publicly disclose the intention
to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of the Underwriter which consent may be withheld in the Underwriter’s sole
discretion.
Notwithstanding the foregoing, the undersigned may transfer the undersigned’s shares of Common Stock or securities convertible into or exchangeable or
exercisable for any shares of Common Stock without the prior written consent of the Underwriter:
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(i) |
provided that (a) such transfer shall not involve a disposition for value, (b) each resulting transferee of the Company’s securities executes and delivers to the Underwriter an agreement satisfactory
to the Underwriter certifying that such transferee is bound by the terms of this Agreement and has been in compliance with the terms hereof since the date first above written as if it had been an original party hereto, (c) no filing by any
party under Section 16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with such transfer:
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a. |
as a bona fide gift or gifts, including to charitable organizations;
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b. |
to immediate family members of the undersigned, trusts for the benefit of the undersigned or immediate family members of the undersigned, or partnerships, limited liability companies or other
entities the only partners, members or equity holders of which are the undersigned and/or immediate family members of the undersigned;
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c. |
if the undersigned is a corporation, partnership, limited liability company, trust or other business entity and (1) transfers to another corporation, partnership, limited liability company, trust or
other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned or (2) distributes shares of Common Stock or any security convertible into or
exercisable for Common Stock to limited or general partners, limited liability company members, unitholders or stockholders of the undersigned, or to any investment fund or other entity that controls or manages the undersigned;
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(ii) |
by testate succession or intestate succession;
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(iii) |
if the undersigned is an employee of the Company and transfers to the Company upon death, disability or termination of employment of such employee;
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(iv) |
in connection with the transfer or withholding of shares of Common Stock or any securities convertible into shares of Common Stock to the Company upon a vesting event of the Company’s securities or
upon the exercise of options to purchase the Company’s securities, in each case on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection with such vesting or exercise;
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(v) |
for sales of securities under any trading plan pursuant to Rule 10b5-1; or
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(vi) |
by operation of law or pursuant to an order of a court or regulatory agency, including pursuant to or in connection with a qualified domestic order, divorce settlement or decree or separation
agreement.
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If the undersigned is an officer or director of the Company, the undersigned agrees that the foregoing restrictions shall be equally applicable to any
issuer-directed or “friends and family” shares of Common Stock that the undersigned may purchase in the proposed public offering.
In addition, the undersigned agrees that, during the period commencing on the date hereof and ending 90 days after the Public Offering Date, without
the prior written consent of the Underwriter (which consent may be withheld in its sole discretion): (a) the undersigned will not request, make any demand for or exercise any right with respect to, the registration of any Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock and (b) the undersigned waives any and all notice requirements and rights with respect to the registration of any such security pursuant to any agreement, understanding or otherwise to
which the undersigned is a party.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to (a) decline to make any transfer of shares
of Common Stock if such transfer would constitute a violation or breach of this Agreement and (b) place legends and stop transfer instructions on any such shares of Common Stock owned or beneficially owned by the undersigned.
This Agreement is irrevocable and shall be binding on the undersigned and the successors, heirs, personal representatives and assigns of the
undersigned upon the execution of the Underwriting Agreement by the Company and the Underwriter. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to choice of law rules. This
Agreement shall lapse and become null and void if the Public Offering Date shall not have occurred on or before July 25, 2025.
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Very truly yours,
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Printed Name:
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