Thryv Holdings, Inc.
5,715,000 Shares
($0.01 par value per share)
Underwriting Agreement
New York, New York
October 29, 2024
RBC Capital Markets, LLC
As
Representative and
Underwriter,
c/o RBC Capital Markets, LLC
200 Vesey Street
New York, New York 10281-8098
Ladies and Gentlemen:
Thryv Holdings, Inc., a
Delaware corporation (the “
Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “
Underwriters”), for whom
you (the “
Representative”) are acting as representative, 5,715,000 shares of common stock, $0.01 par value per share (“
Common Stock”), of the
Company (said shares to be issued and sold by the
Company being hereinafter called the “
Underwritten Securities”). The
Company also proposes to grant to the
Underwriters an option to purchase up to 857,250 additional shares of
Common Stock to cover over-allotments, if any (the “
Option Securities”; the Option Securities, together with the Underwritten Securities, being
hereinafter called the “
Securities”). To the extent there are no additional
Underwriters listed on Schedule I other
than you, the term “
Underwriters” shall be construed to mean “
Underwriter”. Certain terms used herein are defined in Section 22 hereof. Any reference herein
to the
Registration Statement, any
Preliminary Prospectus or the
Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3.
1.
Representations and Warranties. The
Company hereby represents and warrants to, and agrees with, each
Underwriter, as of the date of this
underwriting agreement (this “
Agreement”),
as of the
Closing Date (as defined herein) and as of each additional settlement date (as defined herein), if any, as set forth below in this Section 1.
(a) The
Company has prepared and filed with the
SEC a
registration statement (file number 333-266542) on
Form S-3, including a related
preliminary prospectus,
for registration under the
Act of the
offering and sale of the
Securities. Such
Registration Statement, including any amendments thereto filed prior to the
Execution Time, has become effective. The
Company will file with the
SEC a final
prospectus in
accordance with
Rule 424(b). As filed, such final
prospectus shall contain all information required by the
Act and the rules
thereunder and, except to the extent the
Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and other changes (beyond that
contained in the latest
Preliminary Prospectus) as the
Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the
Effective Date, the
Registration Statement did, and when the
Prospectus is first filed in accordance with
Rule 424(b) and on the
Closing
Date, and on any date on which
Option Securities are purchased, if such date is not the
Closing Date (a “
settlement date”), the
Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the
Act and the
Exchange Act and the respective rules thereunder; on the
Effective Date and at the
Execution Time, the
Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to
Rule 424(b) and on the
Closing Date, and any settlement date, the
Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or 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,
however, that the
Company makes no representations or warranties as to the information contained in or omitted from the
Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the
Company
by or on behalf of any
Underwriter through the
Representative specifically for inclusion in the
Registration
Statement or the
Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any
Underwriter consists of
the information described as such in Section 9(b) hereof. The
Company has complied to the
SEC’s
satisfaction with all requests of the
SEC for additional or supplemental information, if any. No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of the
Company, no proceeding for that purpose has
been instituted or threatened by the
SEC or by the state
securities authority of any jurisdiction. No order preventing or suspending
the use of the
Prospectus has been issued and, to the knowledge of the
Company, no proceeding for that purpose has been
instituted by the
SEC or by the state
securities authority of any jurisdiction. There are no contracts or other documents required to
be described in the
Disclosure Package or the
Prospectus or to be filed as an exhibit to the
Registration
Statement which have not been described or filed as required.
(c)
(i) The Disclosure Package, (ii) each electronic road show when taken together as a whole with the Disclosure Package, and
(iii) any individual Written Testing-the-Waters Communication, when taken together as a whole with the Disclosure Package, does not contain 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. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package, any
electronic road show or any individual
Written Testing-the-Waters Communication based upon and in conformity with written information furnished to the
Company by any
Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 9(b) hereof.
(d) At the time of filing the
Registration Statement and, if applicable, at the time of the most recent amendment thereto for purposes of complying with
Section 10(a)(3) of the
Act, the
Company was a “well-known seasoned issuer” (as defined in
Rule
405 of the
Act) eligible to use
Form S-3 for the
offering of the
Securities, including not
having been an “ineligible issuer” (as defined in
Rule 405 of the
Act) at any such time. The
Company
has paid the registration fee for this
offering pursuant to Rule 456(b)(1) under the
Act or will pay such fee within the time period required by such rule (without giving
effect to the proviso therein) and in any event prior to the
Closing Date.
(e) The
Company (i) has not alone engaged in any
Testing-the-Waters
Communication other than
Testing-the-Waters Communications with the consent of the
Representative with entities that are qualified institutional
buyers within the meaning of Rule 144A under the
Act or institutions that are accredited investors within the meaning of Rule 501 under the
Act and (ii) has not authorized
anyone other than the
Representative to engage in
Testing-the-Waters Communications. The
Company reconfirms that the
Representative 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. Any individual
Written Testing-the-Waters Communication does not conflict with the information contained in the
Registration Statement, the
Disclosure Package or the
Prospectus.
(f) Each
Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the
Registration Statement, including any document incorporated by reference therein that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions
from any
Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the
Company
by any
Underwriter through the
Representative specifically for use therein, it being understood and agreed that the only such information furnished by or
on behalf of any
Underwriter consists of the information described as such in Section 9(b) hereof.
(g) The copies of each
Preliminary Prospectus, each
Issuer Free Writing Prospectus that is
required to be filed with the
SEC pursuant to
Rule 433 and the
Prospectus and any amendments
or supplements to any of the foregoing, that have been delivered to the
Underwriters in connection with the
offering of the
Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise) were identical to the electronically transmitted copies thereof filed with the
SEC pursuant to EDGAR, except to the extent permitted by Regulation S-T. For purposes of this
Agreement, references to the “delivery” or “furnishing” of any of the
foregoing documents to the
Underwriters, and any similar terms, include, without limitation, electronic delivery.
(h) All documents filed by the
Company pursuant to Sections 12, 13, 14 or 15 of the
Exchange
Act and incorporated or deemed to be incorporated by reference into the
Registration Statement, any
Preliminary Prospectus, the
Disclosure Package or the
Prospectus, upon first use or when they became effective or were filed with the
SEC, as the case may be, complied in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and were filed on a timely basis with the SEC, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading. The Company has taken all actions necessary so that any “road show” (as defined in Rule 433 under the Act)
in connection with the offering of the Securities will not be required to be
filed pursuant to the Act and the rules and regulations thereunder.
(i) Each of
the Company and its subsidiaries has been duly organized and is in good standing as a corporation or other business entity under the laws of the jurisdiction in which it is chartered or
organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the
Registration Statement, the
Disclosure Package and the
Prospectus, and is duly qualified to do business as a foreign corpo
ration where the nature of
its properties or the conduct of its business requires such registration or qualification and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (x) the performance of this
Agreement or the consummation of
any of the transactions contemplated hereby or (y) the condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “
Material Adverse Effect”). The
Company does not own or
control, directly or indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 2
1 to the
Company’s
Annual Report on Form 10‑K for the fiscal year ended December 31, 2023.
(j) All the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the
Registration Statement, the
Disclosure Package and the
Prospectus,
all outstanding shares of capital stock of the
subsidiaries are owned by the
Company either directly or through wholly
owned
subsidiaries free and clear of any perfected
security interest or any other
security interests, claims, liens
or
encumbrances. Except as set forth in the
Registration Statement, the
Disclosure Package and
the
Prospectus, there are no outstanding options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any
securities or interests for capital stock or other ownership interests of any
subsidiary of the
Company.
(k) The
Company’s authorized equity capitalization is as set forth in the
Registration
Statement, the
Disclosure Package and the
Prospectus under the heading “Capitalization”; the capital stock of the
Company conforms in all material respects to the description thereof contained in
the Registration Statement, the Disclosure Package and the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to the terms of this
Agreement, will be fully paid and non-assessable
; upon transfer to the Underwriters, purchasing such Securities in good faith and without knowledge of any
such Encumbrance (defined below), the Securities will be free and clear of
any transfer restrictions, security interests, liens, mortgage, pledge, charges, equities, claims, encumbrances or defect in title of any nature (each, an “Encumbrance”); the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe for the
Securities; except as set forth in the
Registration Statement, the
Disclosure Package and the
Prospectus, no options, warrants or other
rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of
or ownership interests in the
Company or any of its
subsidiaries are outstanding; and all offers and sales by the
Company of the
Company’s shares of
capital
stock prior to the date hereof were at all relevant times duly registered under the
Act or (based in part on representations and warranties by the purchasers of such shares) were exempt from the registration
requirements of the
Act and were duly registered or the subject of an available exemption from the registration requirements of the applicable state
securities or blue
sky laws.
(l) With respect to the stock options (the “
Stock Options”) granted pursuant to the
Stock Plans (as defined below), (i) each
Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986,
as amended (the “
Code”), so qualifies, (ii) each grant of a
Stock Option was duly authorized no later than the date on which the grant of such
Stock Option was by its terms to be effective by all necessary corporate
action, including, as applicable, approval by the board of directors of the
Company or its relevant
subsidiary(ies) (or a duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if any), to the
Company’s knowledge, was duly executed and delivered by each party thereto, (iii) each such grant was made in all material respects in accordance with (x) the terms of any stock-based compensation
plan or other employee compensation
plan or arrangement established or maintained by the
Company
or its
subsidiaries existing on the date hereof (together, the “
Stock Plans”), (y) the
Exchange Act and (z) the
rules of the
Nasdaq Capital Market (“
NASDAQ”) and any other exchange on which the
Company’s
securities are traded, and (iv) each such grant was properly accounted for in accordance with U.S. generally
accepted accounting principles (“
GAAP”) in the financial statements (including the related notes) of the
Company.
(m) The description of the
Stock Plans and
Stock Options, and any other rights granted and exercised thereunder, set forth
in the
Registration Statement,
Disclosure Package and the
Prospectus accurately and fairly
presents the information required to be shown with respect to such
plans, options and rights.
(n) The statements in the
Preliminary Prospectus and the
Prospectus under the heading “Material U.S. Federal
Income Tax Consequences for Non-U.S. Holders,” insofar as such statements summarize legal matters,
agreements or documents discussed therein, are accurate and fair summaries of such legal matters,
agreements or documents.
(o) The
Company has all requisite power and authority to enter into this
Agreement and
to offer, issue, sell and deliver the
Securities to be sold by it to the
Underwriters as provided herein. This
Agreement
has been duly authorized, executed and delivered by the
Company. This
Agreement conforms in all material respects to the
description thereof contained in the
Registration Statement, the
Disclosure Package and the
Prospectus.
(p) The
Company is not and, after giving effect to the
offering and sale of the
Securities and the application of the proceeds thereof as described in the
Registration Statement, the
Disclosure
Package and the
Prospectus, will not be an “investment
company” or an entity “controlled” by an “investment
company”, in
each case, as defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the
SEC thereunder.
(q) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as (i) may be required
under the
Act, by
NASDAQ and under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the
Securities
by the
Underwriters in the manner contemplated herein and in the
Registration Statement, the
Disclosure
Package and the
Prospectus, (ii) may be required by the Financial Industry Regulatory Authority, Inc. (“
FINRA”) and (iii) if
not obtained, would not reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.
(r) Neither the issue and sale of the
Securities nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or
violation of, or constitute a default under, result in the termination, modification or acceleration of, or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or any of its
subsidiaries pursuant to, (i) the charter, by-laws or similar organizational documents of the
Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan
agreement or other
agreement
or instrument to which the Company or any of its subsidiaries is a party
or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, injunction, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the
Company or any of its
subsidiaries or any of its or their properties or
assets, except, in the case of clauses (ii) and (iii) above, for any such conflict, breach, violation, default, lien, charge or
encumbrance that would not, individually or in the aggregate, reasonably be
expected to have a
Material Adverse Effect.
(s)
The Company and its subsidiaries have good and marketable title to or leasehold interest in, and have acquired title insurance with respect to,
all
real property owned by them, and the improvements (exclusive of improvements owned by tenants) located thereon,
and have good title to all other property owned by them, in each case free and clear of all
liens, encumbrances, claims, security interests, restrictions and defects,
except such as are described in the Disclosure Package 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 and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made
and proposed to be made of such property and buildings by the Company and its subsidiaries.
(t) Except as disclosed in the
Registration Statement, the
Disclosure Package and the
Prospectus, the
Company (i) does not have any material lending or other relationship with any bank or lending affiliate of
RBC Capital Markets, LLC and (ii) does not intend to use any of the proceeds from the sale of the
Securities hereunder to repay any outstanding debt owed to any affiliate of RBC Capital Markets, LLC.
(u) Neither the
Company nor any
subsidiary is (i) in violation of any provision
of its charter or bylaws or similar organizational documents, (ii) in default (or with the giving of notice or lapse of time would be in default) under the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan
agreement or other
agreement or instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the
Company or
such subsidiary or any of its properties, as applicable, except, in the
case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse
Effect.
(v) No holders of
securities of the
Company and its
subsidiaries have rights to require the registration of such
securities under the
Act by reason of the filing of the
Registration Statement with the
SEC or the issuance and sale of the
Securities.
(w) The consolidated historical financial statements, including the notes thereto, and schedules of the
Company and its
consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the
Disclosure
Package and the
Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to form in all material respects with the applicable accounting requirements of the
Act and the
Exchange Act and have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved (except as otherwise noted therein). All “non-
GAAP financial measures” (as such term is defined by the rules and regulations of the
SEC) included or incorporated by reference in the
Registration Statement, the
Disclosure Package and the
Prospectus complies in all material respects
with the requirements of Regulation G and Item 10 of Regulation S-K under the Act; and, except as disclosed in the
Registration Statement, the
Disclosure
Package and the
Prospectus, there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Act, Item 303(a)(4)(ii)) or any other relationships with unconsolidated entities or
other persons, that may have a material current or, to the
Company’s knowledge, material future effect on the
Company’s consolidated financial condition, results of operations, liquidity, capital expenditures, capital resources or significant components of revenue or expenses. No other financial statements are
required to be included or incorporated by reference in the
Registration Statement, the
Disclosure Package or the
Prospectus.
(x) Since the date of the most recent financial statements of the
Company included or incorporated by reference in each of the
Registration Statement, the
Disclosure Package and the
Prospectus (i) there has not been any change
in the capital stock (other than changes pursuant to
agreements or employee benefit
plans or in connection with the exercise of options or warrants, in each case as
described or referred to in the
Registration Statement, the
Disclosure Package or the
Prospectus)
or long-term debt of the
Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the
Company on any class of capital stock, or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, prospects, earnings, rights, assets, management, financial position, or results of operations of the
Company
and its
subsidiaries taken as a whole; (ii) neither the
Company nor any of its
subsidiaries
has entered into any transaction or
agreement that is material to the
Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the
Company
and its
subsidiaries taken as a whole; and (iii) neither the
Company nor any of its
subsidiaries has sustained any material
loss or interference with its business from fire, explosion, flood, windstorm, accident, or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any
action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in
each of the
Registration Statement, the
Disclosure Package and the
Prospectus.
(y) No action, suit, inquiry or proceeding brought by or before any court or governmental agency, authority or body or any arbitrator (“
Actions”) involving the
Company or any of its
subsidiaries or its or their
property is pending or, to the best knowledge of the
Company, threatened that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, except as set forth in or contemplated in the
Registration Statement, the
Disclosure Package and the
Prospectus (exclusive of any supplement thereto). There are no current or pending
Actions
that are required under the
Act to be described in the
Registration Statement, the
Disclosure Package and
the
Prospectus that are not so described therein.
(z) Ernst & Young LLP and Grant Thornton LLP, who have certified certain financial statements of the
Company and its
consolidated
subsidiaries and delivered their reports with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the
Registration
Statement, the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company within the meaning of the Act, the Public Company Accounting Oversight Board and the applicable published rules and
regulations thereunder.
(aa) There are no transfer taxes or other similar fees or charges under federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and
delivery of this
Agreement or the issuance and sale by the
Company of the
Securities.
(bb) The
Company and each of its
subsidiaries has filed all federal, state and
foreign income and franchise tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not, individually or in the aggregate, have a
Material Adverse Effect and except as set forth in or contemplated in the
Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)),
which returns are complete and correct, and neither the Company nor any of its subsidiaries is in default in the payment of any taxes that were payable pursuant to said returns or any assessments with respect thereto, and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except (i) for any such assessment, fine or penalty that is currently being contested in
good faith and for which adequate reserves have been provided in accordance with
GAAP or as would not have a
Material Adverse Effect, or (ii) as set forth in
or
contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(cc) No labor problem or dispute with the employees of the
Company or any of its
subsidiaries
exists or is, to the
Company’s knowledge, threatened or imminent, and the
Company is
not aware of any existing or imminent labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers, that could have a
Material Adverse Effect, except as set forth in or contemplated in the
Registration Statement, the
Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(dd) The
Company and each of its
subsidiaries are insured by insurers of recognized
financial responsibility against such
losses and risks and in such amounts as are, in the
Company’s reasonable judgment, prudent
and customary in the businesses in which they are engaged; all policies of insurance are in full force and effect; the
Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the
Company or any of its
subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries has received notice from any insurer or agent of such insurer that material capital
improvements or other material expenditures are required to be made in order to continue such insurance; neither the Company
nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it 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, except as set forth in or contemplated in the
Registration Statement, the
Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(ee) No
subsidiary of the
Company is currently prohibited or restricted, directly
or indirectly, from paying any dividends to the
Company, from making any other distribution on such
subsidiary’s capital
stock, from repaying to the
Company any loans or advances to such
subsidiary from the
Company or from transferring any of such
subsidiary’s property or assets to the
Company or any other
subsidiary of the
Company, except as described in or
contemplated by the
Registration Statement, the
Disclosure Package and the
Prospectus (exclusive
of any supplement thereto).
(ff) The
Company and its
subsidiaries possess all licenses, certificates, permits
and other authorizations issued by all applicable authorities necessary to conduct their respective businesses,
and have made all declarations, amendments, supplements and filings with the relevant federal,
state, local or foreign governmental, regulatory or administrative authority, agency or body, as are necessary to own its properties and to conduct its business as currently conducted (collectively, the “Permits”) and neither the
Company nor any such
subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
Permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as set forth in or contemplated in the
Registration Statement, the
Disclosure Package and the
Prospectus (exclusive of any supplement thereto
); each of the Company and its subsidiaries has operated and
is operating its business in material compliance with and not in material violation of all of its obligations with respect to each such Permit; all such Permits are valid and in full force and effect and, to the Company’s knowledge, no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination of any such Permit or result
in any other material impairment of the rights of any such Permit, subject in each case to such qualification as may be set forth in the Registration Statement, Disclosure Package and the Prospectus.
(gg) The
Company maintains a system of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the
Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with
GAAP. The
Company’s internal
control over financial reporting is effective and the
Company is not aware of any “significant deficiencies” or “material weaknesses” (each as defined by the PCAOB) in
its internal control over financial reporting.
(hh) The
Company and its
subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under the
Exchange Act) which (i) are designed to ensure that material information relating to the
Company and its
subsidiaries is made known to the
Company’s principal executive
officer and its principal financial officer by others within those entities, especially during the periods in which the periodic reports required under the
Exchange Act are being prepared, (ii) have been
evaluated by management of the
Company for effectiveness as of the end of the
Company’s
most recent fiscal quarter, and (iii) are effective in all material respects to perform the functions for which they were established.
The principal executive officer (or their equivalents) and principal
financial officer (or their equivalents) of the Company have made all certifications required by the Sarbanes-Oxley Act of 2002 (together with any rules and regulations promulgated by the SEC and NASDAQ thereunder, the “Sarbanes-Oxley Act”), and the statements contained in each such certification are complete and correct.
(ii) The
Company has not taken, directly or indirectly, any
action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the
Company to facilitate the sale or resale of the
Securities.
(jj)
Except as disclosed in the Disclosure Package and the Prospectus, neither the Company nor any of its
subsidiaries has been or is in violation of any statute, any rule, regulation, decision or order of any federal, provincial, state, local, municipal, national or
international government or governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body (public or private),
self-regulatory organization or any political subdivision of any of the foregoing, relating to the use, disposal or release of hazardous or toxic substances, wastes, pollutants, contaminants
or relating
to the protection or restoration of the natural resources
, environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would, individually or in the aggregate, have a Material Adverse Effect; and the Company
is not aware of any pending investigation which might lead to such a claim. Neither the Company nor any of its subsidiaries anticipates incurring any material capital expenditures relating to compliance with Environmental Laws.
(kk)
Except as otherwise disclosed in the Prospectus, each “employee benefit plan” (as defined under Section 3(3) of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) established or maintained by the Company, its subsidiaries or their ERISA
affiliates existing on the date hereof is, and has been maintained and administered, in compliance in all material respects with ERISA,
the Code and all other applicable state and federal laws and regulations. Except as otherwise disclosed in the Prospectus, none of the following events has occurred or
exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of ERISA, and the regulations and published
interpretations thereunder
with respect to a Plan, determined without regard to any
waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental
agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company
or any of its subsidiaries that could have a Material Adverse
Effect; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or any of its subsidiaries that could have a Material Adverse Effect. Except (i) as set forth or described in the Prospectus
or (ii) as would not have, individually or in the aggregate, a Material Adverse Effect, none of the following events has occurred or is reasonably
likely to occur: (A) an increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal
year of the Company and its subsidiaries
compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (B) an increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (C) any event or condition giving rise to a liability
under Title IV of ERISA with respect to termination of, or withdraw from, any Stock
Plans (including any “multiemployer plan”, as defined in ERISA); or (D) the filing of a claim by one or more employees or former employees of the Company or any of its subsidiaries related
to their employment. For purposes of this paragraph, the term “Plan” means a plan (within the
meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which
the Company or any of its subsidiaries may have any liability.
(ll) There is and has been no failure on the part of the
Company and any of the
Company’s directors or officers, in
their capacities as such, to comply with any provision of the
Sarbanes-Oxley Act, including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(mm)
The Company has not, prior to the date hereof,
made any offer or sale of securities which could be “integrated” for purposes of the Act with the offer or sale of the Securities pursuant to the Registration Statement and the Prospectus; and except as disclosed in the Prospectus, the Company has not sold or issued any security during the one hundred eighty (180)-day period preceding the date of the Prospectus, including but not limited to any
sales pursuant to Rule 144A or Regulation D or Regulation S under the Act, other than Stock Options or outstanding options, rights or warrants as described in the Disclosure Package and the Prospectus.
(nn) Neither the
Company nor any of its
subsidiaries, nor, to the knowledge of the
Company, any director, officer or employee of the
Company or any of its
subsidiaries, nor to the knowledge of the Company, any agent, affiliate 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 or taken an
act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee,
including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for
political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, or committed an offence under the Bribery
Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed,
requested or taken an
act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or
benefit. The
Company and its
subsidiaries have instituted,
maintained and enforce, and
will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(oo) The operations of the
Company and its
subsidiaries are and have been
conducted at all times in material compliance with applicable financial recordkeeping and reporting
requirements, including Title 18 U.S. Code Section 1956 and 1957 and those of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, as amended (USA PATRIOT Act), the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts
business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “
Anti-Money
Laundering Laws”), and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its
subsidiaries with respect to the
Anti-Money Laundering Laws is pending or, to the
knowledge of the
Company, threatened.
(pp) Neither the
Company nor any of its
subsidiaries, directors, officers or
employees, nor, to the knowledge of the
Company, any agent, affiliate or other person associated with or acting on behalf of the
Company or any of its
subsidiaries is currently the subject or the target of any sanctions administered or enforced by
the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national”
or “blocked person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “
Sanctions”), nor is the
Company or any of its
subsidiaries located, organized or resident in a country or territory that is the subject or target
of
Sanctions, including, without limitation, Cuba, Iran, North Korea, Syria
and Crimea (each, a “
Sanctioned Country”);
and the
Company will not directly or indirectly use the proceeds of the
offering of the
Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity (i) to
fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of
Sanctions, (ii) to fund or facilitate any activities of or
business in any
Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transactions contemplated by this
Agreement, whether as
underwriter, initial purchaser, advisor, investor or otherwise) of
Sanctions. For the past five
years, the
Company and its
subsidiaries have not knowingly engaged in, are not now knowingly engaged in and will not
engage in
, any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of
Sanctions or with any
Sanctioned Country.
(qq) Neither the
Company nor any of its
subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any
of its
subsidiaries, is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any
Sanctions; or (ii)
located, organized or resident in a
Sanctioned Country.
(rr) The interactive data in the
eXtensible Business Reporting Language included as an exhibit to the
Registration
Statement fairly presents the information called for in all material respects and has been prepared in accordance with the
SEC’s rules and guidelines applicable thereto.
(ss) No relationship, direct or indirect, exists between or among the
Company or any of its
subsidiaries, on the one hand, and the directors, officers, customers, suppliers,
shareholders or other affiliates of the Company, on the other hand, which is required to be described in the Registration
Statement, the Disclosure Package and the Prospectus and which is
not so described.
(tt)
There are no affiliations or associations between (i) any member of FINRA and (ii) the Company, any of its subsidiaries or (to the
Company’s knowledge) any of the Company’s officers, directors, five percent (5%) or greater security holders or any beneficial owner of the Company’s unregistered equity securities that
were acquired at any time on or after the 180th day immediately preceding the date the Registration Statement was initially filed with the SEC, except as otherwise disclosed in the Registration
Statement, the Disclosure Package and the Prospectus.
(uu) The statistical and market-related data included or incorporated by reference in the
Registration Statement, the
Disclosure Package and the
Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate.
(vv) Neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the
Company as described in each of the Registration Statement, the Disclosure Package and the Prospectus will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(ww) No forward-looking statement (within the meaning of Section 27A of the
Act and Section 21E of the
Exchange Act) included in
any of the
Registration Statement, the
Disclosure Package and the
Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(xx) Except (i) to the extent as described in the
Registration Statement, the
Disclosure
Package and the
Prospectus, or (ii) as would not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (x) the
Company or its
subsidiaries owns, possesses, or can acquire on reasonable terms, all
Intellectual Property necessary for the conduct of the
Company’s or any
subsidiary’s
business as now conducted or as described in the
Registration Statement, the
Disclosure Package and the
Prospectus, to be conducted; (y) there are no unreleased liens or
security interests which have been filed against any of the patents owned by the
Company or its
subsidiaries; and (z) there are no rights of third parties to any such Intellectual Property and no
encumbrances on, or grants of any right or license with respect to, any such Intellectual Property. Furthermore, except as would not singly or in the aggregate, reasonably be expected to have a
Material
Adverse Effect: (A) to the knowledge of the
Company, there is no infringement, misappropriation or violation by third parties of any such
Intellectual Property; (B) there is no pending or, to the knowledge of the
Company, threatened,
action, suit, proceeding or claim by others challenging the
Company’s or any
subsidiary’s
rights in or to any such
Intellectual Property, and the
Company is unaware of any facts which would form a
reasonable basis for any such claim; (C) the
Intellectual Property owned by the
Company or its
subsidiaries, and to the knowledge of the
Company, the
Intellectual
Property licensed to the
Company or its
subsidiaries, has not been adjudged invalid or unenforceable, in whole or in
part, and there is no pending or, to the knowledge of the
Company, threatened
action, suit, proceeding or claim by others
challenging the validity or scope of any such
Intellectual Property, and the
Company is not aware of any facts
which would form a reasonable basis for any such claim; (D) there is no pending or, to the knowledge of the
Company, threatened,
action,
suit, proceeding or claim by others that the
Company or any of its
subsidiaries infringes, misappropriates or otherwise
violates any
Intellectual Property or other proprietary rights of others, neither the
Company nor any of its
subsidiaries has received any written notice of such claim and the
Company is unaware of any other fact which would form
a reasonable basis for any such claim; (E) the
Company and its
subsidiaries have complied with the material terms of
each
agreement pursuant to which
Intellectual Property has been licensed to the
Company or its
subsidiaries, and all such
agreements are in full force and effect; (F) to the
Company’s knowledge, no employee of the
Company or any of its
subsidiaries is in or has ever been in material violation of any
Intellectual Property-related term of any employment contract, patent disclosure
agreement, invention assignment
agreement, or nondisclosure
agreement where the basis of such material violation relates
to such employee’s employment with the
Company or any of its
subsidiaries or
actions
undertaken by the employee while employed with the
Company or any of its
subsidiaries; (G) there is no U.S. patent or
published U.S. patent application which contains claims that dominate or may dominate any Intellectual Property described in the Disclosure Package and the Prospectus as being owned by or licensed to the Company or that interferes with the issued
or pending claims of any such Intellectual Property; and (H) there is no prior art of which the Company is aware that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company unpatentable which has
not been disclosed to the U.S. Patent and Trademark Office. “
Intellectual Property” shall mean all patents, patent applications, trade and service marks, trade and service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets, domain names, technology, know-how and other intellectual property.
(yy) Except pursuant to this
Agreement, there is no broker, finder or other party that is entitled to receive from the
Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this
Agreement.
(zz) There are (and prior to the
Closing Date, will be) no debt
securities,
convertible
securities or preferred stock issued or guaranteed by the
Company or any of its
subsidiaries that are rated by a “nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62) under the
Exchange Act.
(aaa)
The Company and each of its subsidiaries have, for the past three (3) years, complied, and are presently in compliance, in each case, in all material respects, with their respective public-facing
privacy and security policies, and with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any governmental agency or body regarding the collection, use, transfer, storage, protection, disposal and/or
disclosure of personally identifiable information, and the protection of such information from unauthorized use, access, misappropriation or modification. The Company and its subsidiaries have taken commercially reasonable steps to protect the information technology systems and data used
in connection with the operation of the Company and/or its subsidiaries. The Company and its subsidiaries have used reasonable efforts to establish, and have established, commercially reasonable disaster recovery and security
plans, procedures and facilities for the business, including, without limitation, for the information technology systems and personally identifiable information and other
confidential data held or used by or for the Company and/or any of its subsidiaries. The
Company and its
subsidiaries’ information technology assets
and equipment, computers, systems, networks, hardware, software, websites, applications, and databases are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the
Company and its
subsidiaries as currently conducted, free and clear of all material bugs, errors, defects,
Trojan horses, time bombs, malware and other corruptants.
(bbb)
To the knowledge of the Company, there has
been no material security breach or incident, unauthorized access or disclosure, or other compromise of the Company’s or its subsidiaries’ information technology and computer systems, networks,
hardware, software, confidential or proprietary data and databases (including such 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”), except for those that have been remedied without material cost or liability; (ii) except as has not been, or would not reasonably be expected to be, material to the Company and its subsidiaries, taken as a
whole, neither the Company nor its subsidiaries have been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or
incident, unauthorized access or disclosure or other compromise to their IT Systems and Data; and (iii) the Company and its subsidiaries, taken as a whole, have implemented commercially
reasonable 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.
(ccc) The
Company is not a “legal entity customer” for the purposes of 31 CFR § 1010.230(e).
Any certificate signed by any officer of the
Company and delivered to the
Representative or counsel for the
Underwriters in connection with the
offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the
Company
agrees to sell to each
Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $13.44 per share, the amount of the
Underwritten Securities set forth opposite such
Underwriter’s name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the
Company
hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 857,250
Option Securities at the same purchase price
per share as the
Underwriters shall pay for the
Underwritten Securities, less an amount per share equal to any dividends or distributions declared
by the
Company and payable on the
Underwritten Securities but not payable on the
Option Securities. Said option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the
Prospectus upon written notice by
the
Representative to the
Company setting forth the number of shares of the
Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several
Underwriters as such
Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
3.
Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the
Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the first Business Day immediately preceding the Closing Date) shall be made at 9:00 AM, New York City time, on October 31, 2024, or at such time on such later date not more
than one
Business Day after the foregoing date as the
Representative shall designate, which date and time may be postponed by
agreement between the
Representative and the
Company or as provided in
Section 10 hereof (such date and time of delivery and payment for the
Securities being herein called the “
Closing Date”).
Delivery of the
Securities shall be made to the
Representative for the respective accounts of the several
Underwriters
against payment by the several
Underwriters through the
Representative of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by the
Company.
Delivery of the
Underwritten Securities and the
Option Securities shall be made through the facilities of The Depository Trust Company unless
the
Representative shall otherwise instruct.
4. If the option provided for in Section 2(b) hereof is exercised after the first
Business Day immediately preceding the
Closing Date, the
Company will deliver the
Option Securities (at the expense of the
Company) to the
Representative on the date specified by the
Representative (which shall be within three
Business Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several
Underwriters through the
Representative of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by the
Company. If settlement for the
Option Securities occurs after the
Closing Date, the
Company will deliver
to the
Representative on the settlement date for the
Option Securities, and the obligation of the
Underwriters
to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on
the
Closing Date pursuant to Section 7 hereof.
5.
Offering by Underwriters. It is understood that the several
Underwriters propose to
offer the
Securities for sale to the public as set forth in the
Prospectus.
6.
Agreements. The
Company agrees with the several
Underwriters
that:
(a) Prior to the termination of the
offering of the
Securities, the
Company will not file any amendment of the
Registration Statement or supplement to the
Prospectus or any
Rule 462(b) Registration Statement unless the
Company
has furnished you a copy for your review a reasonable period of time prior to the proposed time of filing and will not file any such proposed amendment or supplement to which you reasonably object. The
Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the
Representative
with the
SEC pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the
Representative of such timely filing. The
Company will promptly advise the
Representative (i) when the
Prospectus, any supplement thereto, and any
Written Testing-the-Waters
Communications shall have been filed (if required) with the
SEC pursuant to
Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
SEC,
(ii) when, prior to termination of the
offering of the
Securities, any amendment to the
Registration
Statement shall have been filed or become effective, (iii) of any request by the
SEC or its staff for any amendment of the
Registration
Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the
Prospectus
or for any additional information, including, but not limited to, any request for information concerning any
Testing-the-Waters Communication, (iv) of the issuance by the
SEC of any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of
any
Written Testing-the-Waters Communication or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification of the
Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or objection to the use of the
Registration Statement or the prevention or suspension of the use of any
Written Testing-the-Waters Communication and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new
registration statement and
using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) If, at any time prior to the filing of the
Prospectus pursuant to
Rule 424(b), any event or development occurs as a
result of which the
Disclosure Package would include an untrue statement of a material fact or 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 at such time not misleading, the
Company will (i) notify promptly the
Representative
so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the
Disclosure Package to
correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c) If, at any time when a
prospectus relating to the
Securities is required to be delivered under the
Act (including in circumstances where such requirement may be satisfied pursuant to
Rule 172), any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under
which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the
Prospectus to comply with the
Act or the rules thereunder, the
Company promptly will
(i) notify the
Representative of any such event; (ii) prepare and file with the
SEC, subject to the second sentence of
paragraph (a) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance; and (iii) supply any supplemented
Prospectus to you in such quantities
as you may reasonably request.
(d) As soon as practicable, the
Company will make generally available to its
security
holders and to the
Representative an earnings statement or statements of the
Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and the rules and regulations of the
SEC thereunder.
(e) The
Company will furnish to the
Representative and counsel for the
Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus
by an
Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to
Rule 172), as many copies of each
Preliminary Prospectus, the
Prospectus and each
Issuer Free Writing Prospectus and any supplement thereto as the
Representative may reasonably request.
(f) The
Company will arrange, if necessary, for the qualification of the
Securities
for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any
action that would subject it to service of process in suits, other than those arising out of the
offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(g) The
Company will not, without the prior written consent of RBC Capital Markets, LLC, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or
otherwise) by the
Company or any controlled affiliate of the
Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the
SEC in respect of,
or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any other shares of
Common Stock or any
securities convertible into, or exercisable, or exchangeable for, shares of
Common Stock or shares of any class of capital stock of the
Company or any
securities convertible into, or exercisable, or exchangeable for, any of the foregoing;
or publicly announce an intention to effect any such transaction, for a period
of 90 days after the date of this Agreement. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding, or as may be contractually obligated to be issued pursuant to agreements
in effect on the date hereof and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase Common
Stock granted pursuant to employee benefit plans of the Company and (D) the filing of a registration statement on Form S-8 or other appropriate forms, and any amendments thereto, as required by the Act, relating to the Common Stock or other equity-based securities issuable pursuant to the Company’s equity or other incentive plans or employee
stock purchase plans.
(h) The
Company will not take, directly or indirectly, any
action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security
of the
Company to facilitate the sale or resale of the
Securities.
(i) The
Company agrees to pay the costs and expenses relating to the following matters: (i) the
preparation, printing or reproduction and filing with the
SEC of the
Registration Statement (including financial
statements and exhibits thereto), each
Preliminary Prospectus, the
Prospectus and each
Issuer
Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the
Registration Statement, each
Preliminary Prospectus, the
Prospectus and each
Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the
offering and sale of the
Securities; (iii) any stamp or transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other
agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the
Securities; (v) the listing of the
Securities on the
NASDAQ; (vi) any registration or qualification of the
Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such
registration and qualification); (vii) any filings required to be made with
FINRA (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings, provided that the reimbursement obligation of such fees and expenses of counsel to the
Underwriters shall not, in the
aggregate, exceed $15,000); (viii) the transportation and other expenses incurred by or on behalf of
Company
representatives
in connection with presentations to prospective purchasers of the
Securities; and (ix) the fees and expenses of the
Company’s
accountants and the fees and expenses of counsel (including local and special counsel) for the
Company.
(j) The
Company agrees that, unless it has or shall have obtained the prior written consent of the
Representative, and each
Underwriter, severally and not jointly, agrees with the
Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the
Company, it has not
made and will not make any offer relating to the
Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise
constitute a “
free writing prospectus” (as defined in
Rule 405) required to be filed by the
Company with the
SEC or retained by the
Company
under
Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the
Free Writing
Prospectuses included in Schedule II hereto and any electronic road show. Any such
free writing prospectus consented to by the
Representative or
the
Company is hereinafter referred to as a “
Permitted Free Writing Prospectus.” The
Company agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing
Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the
SEC, legending and record keeping.
(k) If at any time following the distribution of any
Written Testing-the-Waters Communication, any event occurs as a result of which such
Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the
circumstances under which they were made at such time not misleading, the
Company will (i) notify promptly the
Representative
so that use of the
Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the
Written
Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the
Representative in such quantities as may be reasonably requested.
(l) The
Company will comply with all applicable
securities and other applicable
laws, rules and regulations, including, without limitation, the
Sarbanes-Oxley Act, and will use its reasonable best efforts to cause the
Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the
Sarbanes-Oxley Act.
(m) The
Company will use the net proceeds received by the
Company from the sale of the
Securities in the manner specified in the
Preliminary Prospectus and
Prospectus under the caption “
Use of Proceeds.”
(n) The
Company shall engage and maintain, at its expense, a registrar and transfer agent for the
Securities.
(o) The
Company will use its best efforts to list, subject to notice of issuance, the
Securities
on the
NASDAQ.
7.
Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the
Underwritten Securities and the
Option Securities shall be subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the
Execution Time, the
Closing Date and any
settlement date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The
Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by
Rule
424(b); any material required to be filed by the
Company pursuant to
Rule 433(d) under the
Act
shall have been filed with the
SEC within the applicable time periods prescribed for such filings by
Rule 433; and no stop order
suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The
Company shall have requested and caused Akin Gump Strauss Hauer & Feld LLP, counsel for the
Company, to have furnished to the
Representative their opinion, dated the
Closing
Date and addressed to the
Representative, in the form attached in Annex A hereto.
(c) The
Representative shall have received from Mayer Brown LLP, counsel for the
Underwriters, such opinion or
opinions, dated the
Closing Date and addressed to the
Representative, with respect to the issuance and sale of the
Securities,
the
Registration Statement, the
Disclosure Package, the
Prospectus (together with any supplement
thereto) and other related matters as the
Representative may reasonably require, and the
Company shall have furnished
to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The
Company shall have furnished to the
Representative a certificate of
the
Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the
Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully examined the
Registration
Statement, the
Disclosure Package, the
Prospectus and any amendment or supplement thereto, and this
Agreement
and that:
(i) the representations and warranties of the
Company in this
Agreement
are true and correct on and as of the
Closing Date with the same effect as if made on the
Closing Date and the
Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) the
Registration Statement has become effective under the
Act and no stop order suspending
the effectiveness of the
Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the
Disclosure Package and the
Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The
Company shall have requested and caused Ernst & Young LLP and Grant Thornton LLP to have furnished to the
Representative, at the
Execution Time, at the
Closing Date, letters, dated respectively as of the
Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representative.
(f) Subsequent to the
Execution Time or, if earlier, the dates as of which information is given in the
Registration
Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Disclosure Package and the
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the
Securities as contemplated by the
Registration Statement (exclusive of any
amendment thereof), the
Disclosure Package and the
Prospectus (exclusive of any amendment or supplement thereto).
(g) The
Company shall have furnished to the
Representative a certificate,
dated the
Closing Date, and if applicable, any additional settlement date, addressed to the
Representative, of its chief financial officer with respect to
certain financial data contained in the
Registration Statement, the
Disclosure Package and the
Prospectus,
providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the
Representative.
(h) Prior to the
Closing Date, and if applicable, any additional settlement date, the
Company
shall have furnished to the
Representative such further information, certificates and documents as the
Representative may reasonably request.
(i) Subsequent to the
Execution Time, there shall not have been any decrease in the rating of any of the
Company’s debt
securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the
Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The
FINRA, upon review, if any, of the terms of the public
offering of the
Securities,
shall not have objected to such
offering, such terms or the
Underwriters’ participation in same.
(k) Prior to the
Execution Time, the
Company shall have furnished to the
Representative a letter substantially in the form of Exhibit A hereto (the “
Lock-Up Agreement”) from each officer and director of the
Company listed on Schedule III hereto addressed to the
Representative. The
Company will use its best efforts to enforce the terms of each
Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the
Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable
Lock-Up Agreement.
(l) On the
Closing Date, the
Securities shall have been approved for listing on the
NASDAQ,
subject only to official notice of issuance.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this
Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the
Representative and counsel for the
Underwriters, this
Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time
prior to, the
Closing Date by the
Representative. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered at the office of Mayer Brown LLP, counsel for the
Underwriters, at 1221 6th Ave, New York, NY
10020 (or such other place as the
Representative and the
Company may mutually agree upon), on the
Closing Date.
8.
Reimbursement of Underwriters’ Expenses. If the sale of the
Securities provided for herein is not consummated because any
condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability or failure
on the part of the
Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the
Underwriters, the
Company will reimburse the
Underwriters
severally through RBC Capital Markets, LLC on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the
Securities.
9.
Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any
Underwriter
within the meaning of either the
Act or the
Exchange Act against any and all
losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such
losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in any
Preliminary
Prospectus, or the
Prospectus, or any
Issuer Free Writing Prospectus, any roadshow, or any
Written
Testing-the-Waters Communication or in any amendment thereof or supplement thereto or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any documented legal or other expenses reasonably incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or
action;
provided,
however, that the
Company
will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished to the
Company by or on behalf of any
Underwriter through the
Representative specifically for inclusion therein, it being understood and agreed that the only such information provided by any
Underwriter through the
Representative is that identified as such in Section 9(b). This indemnity
agreement will
be in addition to any liability which the
Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the
Company within the meaning of either the
Act or the
Exchange Act, to the same extent
as the foregoing indemnity from the
Company to each
Underwriter, but only with reference to written information
relating to such
Underwriter furnished to the
Company by or on behalf of such
Underwriter
through the
Representative specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition
to any liability which any
Underwriter may otherwise have. The
Company acknowledges that the following statements set
forth in the
Preliminary Prospectus and the
Prospectus under the heading “Underwriting”: (i) the fifth paragraph thereof related to selling
concessions and dealer reallowances and (ii) the tenth, eleventh and twelfth paragraphs thereof related to stabilization, syndicate covering transactions and penalty bids, constitute the only information furnished in writing by or on behalf of the
several
Underwriters for inclusion in the
Preliminary Prospectus, the
Prospectus, any
Issuer Free Writing Prospectus, or any
Written Testing-the-Waters Communication.
(c) Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided,
however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. It is understood and agreed that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local counsel) for all indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such
Underwriter shall be designated in writing by RBC Capital Markets, LLC and
any such separate firm for the
Company, its directors and officers and any control persons of the
Company 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
(which consent shall not 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 each indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party
reimburse the indemnified party for fees and expenses of counsel as contemplated by this paragraph, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by the indemnifying party of such request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought
hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 9 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the
Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “
Losses”)
to which the
Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the
Company on the one hand and by the
Underwriters on the other from the
offering of the
Securities;
provided,
however, that in no case shall any
Underwriter (except as may be
provided in any
agreement among
underwriters relating to the
offering of the
Securities)
be responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such
Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the
Underwriters
severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the
Company on the one hand
and of the
Underwriters on the other in connection with the statements or omissions which resulted in such
Losses as well as
any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the
Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information provided by the
Company on the one hand or by the
Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The
Company and the
Underwriters agree that it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of either the
Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the
Company within the meaning of either the
Act or the
Exchange Act, each officer of the
Company who shall have signed the
Registration Statement and each director of the
Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
10.
Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such
Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining
Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of
Securities set forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities
set forth opposite the names of all the remaining
Underwriters) the
Securities which the defaulting
Underwriter
or
Underwriters agreed but failed to purchase;
provided,
however, that in the event that the aggregate amount of
Securities which the
defaulting
Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities
set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the
Securities,
and if such nondefaulting
Underwriters do not purchase all the
Securities, this
Agreement will terminate without
liability to any nondefaulting
Underwriter or the
Company. In the event of a default by any
Underwriter as set forth in this Section 10, the
Closing Date shall be postponed for such period, not exceeding five
Business
Days, as the
Representative shall determine in order that the required changes in the
Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the
Company and any nondefaulting
Underwriter
for damages occasioned by its default hereunder.
11.
Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representative, by notice given to the
Company prior to delivery of and payment for the
Securities, if at any time prior to such delivery and payment (i) trading
in the
Company’s
Common Stock shall have been suspended or limited by the
SEC or the
NASDAQ or trading in
securities generally on the NYSE or
NASDAQ shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or
there shall have occurred a material disruption in commercial banking or
securities settlement or clearance services in the United States, or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere the effect of which on financial markets is
such as to make it, in the sole judgment of the
Representative, impractical or inadvisable to proceed with the
offering or delivery of the
Securities as contemplated by the
Preliminary Prospectus or the
Prospectus (exclusive of any supplement
thereto).
12.
Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the
Underwriters set forth in or made pursuant to this
Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the
Company or any of the
officers, directors, employees, agents or controlling persons referred to in Section 9 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this
Agreement.
13.
Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the
Representative, will be mailed, delivered or telefaxed to the RBC
Capital Markets, LLC, 200 Vesey Street, 8
th Floor, New York, New York 10281-8098,
Attention: Michael Goldberg, Syndicate Director,
Fax: (212) 428-6260; or, if sent to the
Company, will be mailed or electronically delivered to Thryv Holdings, Inc., 2200 West Airfield Drive, P.O. Box
619810 D/FW Airport, Attention: Lesley Bolger, Email: Lesley.Bolger@thryv.com.
14.
U.S. Special Resolution Regime.
(i) In the event that any
Underwriter that is a
Covered Entity becomes subject to a proceeding under a
U.S. Special Resolution Regime, the transfer from such
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.
(ii) In the event that any
Underwriter that is a
Covered Entity or a
BHC Act Affiliate of such
Underwriter becomes subject to a proceeding under a
U.S. Special
Resolution Regime,
Default Rights under this
Agreement that may be exercised against such
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.
As used in this Section 14:
“
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 Rights” 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.
15. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section
9 hereof, and no other person will have any right or obligation hereunder.
16. No Fiduciary Duty. The Company hereby acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection
with the offering and the process leading up to the offering is as independent contractors and not in any other capacity and no Underwriter has 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 such 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 (d) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation of any action by the Underwriters with respect to any
entity or natural person. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the
Company on related or other matters) and 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 Underwriters have rendered advisory services of any
nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
17. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
18. Applicable Law and Submission to Jurisdiction. This Agreement and any claim, controversy or dispute arising under or related to this Agreement or the transactions contemplated hereby (including without limitation, any
claims sounding in equity, statutory law, contract law or tort law arising out of the subject matter hereof) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws
doctrine. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in
the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively, the “Designated Courts”), and each party irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process,
summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the Designated Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought
in any such court has been brought in an inconvenient forum.
19. Waiver of Jury Trial. The Company 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. Counterparts; Electronic Signatures. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. The words
“execution,” “signed,” “signature,” and words of like import in this Agreement or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
21. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
22. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Disclosure Package” shall mean (i) the Preliminary Prospectus that is generally distributed to investors and used to offer the Securities, including any document that is incorporated by reference therein
(ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto, and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus referred to in paragraph 1(a) above and any preliminary prospectus included in the Registration Statement at the Effective Date that omits Rule
430A Information.
“Prospectus” shall mean the prospectus relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including the exhibits, financial statements and schedules thereto and any prospectus supplement relating
to the Securities that is filed with the SEC pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430A, as amended at the Execution Time and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Rule 164”, “Rule 172”, “Rule 405”, “Rule 424”, “Rule 430A” and “Rule 433” refer to such rules under the Act.
“Rule 430A Information” shall mean information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in
Section 1(a) hereof.
“SEC” shall mean the Securities and Exchange Commission.
“subsidiary” shall mean each direct and indirect subsidiary of the Company.
“Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Rule 163B under the 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 Act.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
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Very truly yours,
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Thryv Holdings, Inc.
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By:
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/s/ Paul Rouse
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Name: Paul
Rouse
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Title: Chief Financial Officer, Executive Vice President and Treasurer
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The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
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RBC Capital Markets, LLC
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By:
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/s/ Jesse Chasse
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Name:
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Jesse Chasse |
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Title:
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Managing Director, Head of Tech Equity Capital Markets |
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For itself and the other several Underwriters named in Schedule I to the foregoing Agreement.
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Schedule I
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Underwriters
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Number of Securities
to be Purchased
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RBC Capital Markets, LLC.
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Underwritten Securities
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5,715,000
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Option Securities
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857,250
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Total
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6,572,250
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Schedule II
Schedule of Free Writing Prospectuses included in the Disclosure Package:
None.
Schedule III
Schedule of Directors and Officers Subject to Lock-Up:
Joseph A. Walsh
Paul D. Rouse
Grant Freeman
James McCusker
John Wholey
Lesley Bolger
Amer Akhtar
Bonnie Kintzer
Lauren Vaccarello
Ryan O’Hara
John Slater
Heather Zynczak
ANNEX A
[Opinion of Akin Gump Strauss Hauer & Feld LLP]
EXHIBIT A – Form of Lock-Up Agreement
October 29, 2024
RBC Capital Markets, LLC
As Representative of the several Underwriters,
c/o RBC Capital Markets, LLC
200 Vesey Street
New York, New York 10281-8098
Ladies and Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Thryv Holdings, Inc., a Delaware
corporation (the “Company”), and you as representative of a group of Underwriters named therein, relating to an underwritten public offering of common stock, $0.01 par value per share (the “Common Stock”), of the Company (the “Offering”).
Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Underwriting Agreement.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of RBC Capital Markets, LLC, offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission (the “SEC”) in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, and the rules and regulations of the SEC promulgated thereunder with respect to, any shares of Common Stock of the Company or any securities convertible into, or exercisable or exchangeable for such Common Stock (the “Undersigned’s
Securities”), or publicly announce an intention to effect any such transaction, for a period from the date hereof until 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”). The foregoing restrictions are
expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of Common Stock or any other securities of
the Company even if such Common Stock or other securities of the Company would be disposed of by someone other than the undersigned, including, without limitation, any short sale or any purchase, sale or grant of any right (including without
limitation any put or call option, forward, swap or any other derivative transaction or instrument) with respect to any Common Stock, or any other security of the Company that includes, relates to, or derives any significant part of its value
from Common Stock or other securities of the Company.
Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Securities: (i) as a bona fide gift or gifts; (ii) to any trust, partnership, limited liability company or other entity for the direct
or indirect benefit of the undersigned or the immediate family of the undersigned; (iii) if the undersigned is a corporation, partnership, limited liability company or other business entity, (a) to another corporation, partnership, limited
liability company or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Act) of the undersigned or (b) in distributions of shares of Common Stock or any security convertible into or
exercisable for Common Stock to limited partners, limited liability company members or stockholders of the undersigned; (iv) if the undersigned is a trust, to the trustees, beneficiaries or settlors of such trust or a trust that is a direct or
indirect affiliate (as defined in Rule 405 promulgated under the Act) of the undersigned; (v) by testate succession or intestate succession; (vi) to any immediate family member or any investment fund or other entity controlled or managed by the
undersigned; (vii) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (vi); (viii) to the Company pursuant to any contractual arrangement that provides for the
repurchase of the Undersigned’s Securities by the Company in connection with the termination of the undersigned’s employment or other service relationship with the Company or the undersigned’s failure to meet certain conditions set out upon
receipt of such securities; (ix) pursuant to an order of a court or regulatory agency having jurisdiction over the undersigned; (x) in response to a bona fide third party takeover bid made to all holders of Common Stock or any other acquisition
transaction whereby all or substantially all of the Common Stock are acquired by a third party, provided that if such transaction is not completed, the Undersigned’s Securities shall remain subject to the restrictions contained in this Letter
Agreement; or (xi) any pledge, hypothecation or the grant of any security interests in shares of Common Stock in connection with any margin loan or other loans, advances and extensions of credit (a “Margin Loan”) by the undersigned or
any of its direct or indirect subsidiaries and any subsequent transfers of such shares of Common Stock pursuant to any foreclosures in accordance with the terms of the documentation governing any Margin Loan; provided,
in the case of clauses (i)-(xi), that (x) such transfer shall not involve a disposition for value, (y) the transferee agrees in writing with the Underwriters to be bound by the terms of this Letter Agreement and (y) 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 (other than a filing on a Form 5 or other filing made after the expiration of the Lock-Up Period). For purposes of this Letter
Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
In addition, the foregoing restrictions shall not apply to: (i) (a) the undersigned’s exercise or the vesting of equity-based awards granted pursuant to the Company’s equity incentive plans in place as of the date
of this Letter Agreement; (b) the undersigned’s exercise of warrants to purchase Common Stock in place as of the date of this Letter Agreement and issued pursuant to previously disclosed private placements; (c) the transfer, sale or other
disposition of any shares of Common Stock held by the undersigned or issued upon the exercise of any stock options or warrants or upon the vesting of any other equity-based awards held by the undersigned through the net issuance by the Company
of shares of Common Stock, a broker-assisted cashless exercise or otherwise, in each case in order to satisfy any tax obligations due as a result of such exercise or vesting; provided, that (y) in the
case of clauses (a) and (b), such restrictions shall apply to any of the Undersigned’s Securities issued upon such exercise or vesting and (z) in each case, that if any filing is required under Section 16(a) of the Exchange Act in connection
with such exercise, vesting or disposition, such filing shall include a statement to the effect that such filing is the result of the exercise or vesting of equity-based securities pursuant to the Company’s equity incentive plans or pursuant to
the exercise of warrants issued pursuant to previously disclosed private placements; (ii) any transaction with respect to shares of Common Stock acquired in market transactions after completion of the Offering; provided, that no filing by the undersigned reporting a reduction in beneficial ownership under Section 16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with any such transaction or (iii)
the establishment of any contract, instruction or plan (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided, that no sales of the
Undersigned’s Securities shall be made pursuant to such a Plan prior to the expiration of the Lock-Up Period, and such a Plan may only be established if no public announcement of the establishment or existence thereof and no filing with the SEC
or other regulatory authority in respect thereof or transactions thereunder or contemplated thereby, by the undersigned, the Company or any other person, shall be made by the undersigned, the Company or any other person, prior to the expiration
of the Lock-Up Period.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of
the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned with respect to the
Offering of the Common Stock and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters
may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Offering, the Underwriters are not making a recommendation to you to enter into this Letter Agreement, and nothing set
forth in such disclosures is intended to suggest that the Underwriters are making such a recommendation.
The undersigned understands that, if the Underwriting Agreement does not become effective by November 1, 2024, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, the undersigned shall be released from all obligations under this Letter Agreement. The undersigned understands that the Underwriters are
entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York.
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Yours very truly,
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By:
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Name:
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