Exhibit 1.1
THE KEYW HOLDING CORPORATION
(a Maryland corporation)
8,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: January 27, 2017
THE KEYW HOLDING CORPORATION
(a Maryland corporation)
8,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
January 27, 2017
RBC Capital Markets, LLC
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several Underwriters
Ladies and Gentlemen:
The KEYW Holding Corporation, a Maryland
corporation (the “Company”) confirms its agreement with RBC Capital Markets, LLC (“RBC”) and Barclays Capital
Inc. (“Barclays”) and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,”
which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom RBC and Barclays
are acting as representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Company
and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Common Stock, par
value $0.001 per share, of the Company (“Common Stock”) set forth in Schedules A and B hereto and (ii) the grant by
the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 1,275,000 additional shares of Common Stock. The aforesaid 8,500,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or any part of the 1,275,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
The Company understands that the Underwriters
propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Underwriting Agreement
(this “Agreement”) has been executed and delivered.
The Company has prepared and filed with
the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (File No. 333-215115)
covering the public offering and sale of certain securities, including the Securities, under the Securities Act of 1933, as amended
(the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”). Such
registration statement, as of any time, means such registration statement as amended by any post-effective amendments thereto to
such time, including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated
by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a
part thereof as of such time pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”), is referred to herein
as the “Registration Statement,” provided, however, that the “Registration Statement” without reference
to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first contract
of sale for the Securities, which time shall be considered the “new effective date” of such registration statement
with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and schedules thereto
as of such time, the documents incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form
S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B. Each preliminary
prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as a “preliminary
prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus
relating to the Securities in accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”).
The final prospectus, in the form first furnished or made available to the Underwriters for use in connection with the offering
of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus.” For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system or its Interactive Data Electronic Applications (or any successor system) (“XXXXX”).
As used in this Agreement:
“Applicable Time” means 8:30
A.M., New York City time, on January 27, 2017, or such other time as agreed by the Company and the Representatives.
“General Disclosure Package”
means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary prospectus
(including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time and the
information included on Schedule C-1 hereto, all considered together.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”),
including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”)) relating to the Securities that is (i) required to be filed by the Company with the Commission, (ii) a “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the
Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of
the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other
than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by its being specified in Schedule
C-2 hereto.
“Issuer Limited Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
All references in this Agreement to financial
statements and schedules and other information which is “contained,” “included” or “stated”
(or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed
to include all such financial statements and schedules and other information incorporated or deemed incorporated by reference in
the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery
of this Agreement; and all references in this Agreement to the Registration Statement, amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934 (the “1934 Act”), as amended, and the rules and regulations promulgated thereunder (the “1934
Act Regulations”), incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be, at or after the execution and delivery of this Agreement.
SECTION 1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable
Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness
of the Registration Statement or any post- effective amendment thereto has been issued under the 1933 Act, no order preventing
or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes
have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request
(if any) from the Commission for additional information.
Each of the Registration Statement and
any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time
each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
The documents incorporated or deemed to
be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus, when they became effective
or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations.
(ii) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Applicable Time, at
the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted,
omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
As of the Applicable Time, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto (including
any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing
Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents
incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in
the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and will not include
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
The representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for use therein. For purposes of
this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting
- Commissions and Discounts” and the information under the heading “Underwriting - Price Stabilization, Short Positions
and Penalty Bids” (collectively, the “Underwriter Information”) in each case contained in the Prospectus.
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
(iv) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an ineligible issuer.
(v) Independent
Accountants. The accountants who certified the financial statements and supporting schedules included or incorporated by reference
in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants as required
by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Accounting Oversight Board.
(vi) Financial
Statements: Non-GAAP Financial Measures. The financial statements included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in
all material respects the financial position of the Company and its consolidated subsidiaries at the dates indicated and, to the
extent provided in the financial statements included or incorporated by reference in the Registration Statement, the statement
of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved; provided, however, that those financial statements that are unaudited
are subject to year-end adjustments and do not contain all footnotes that may be required under GAAP for annual financial statements.
The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements included therein. The pro forma financial statements and the
related notes thereto included or incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly in all material respects the information shown therein, have been prepared in accordance with the Commission’s
rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein. Except as included therein, no historical or pro forma financial statements
or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General Disclosure
Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement,
the General Disclosure Package or the Prospectus, or incorporated by reference therein, regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act and Item 10 of
Regulation S-K of the 1933 Act, to the extent applicable; and, except as disclosed in the Registration Statement, the General 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. The interactive data in extensible
Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(vii) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise,
and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(viii) Good
Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under
the laws of the State of Maryland and has corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(ix) Good
Standing of Subsidiaries. Each “significant subsidiary” of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly incorporated
or formed and is validly existing in good standing under the laws of the jurisdiction of its incorporation or formation, has corporate
or similar power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus or as would not
result in a Material Adverse Effect, all of the issued and outstanding capital stock of each subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock
of any subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to the Company’s annual report on Form 10-K for the
year ended December 31, 2015, filed with the Commission on March 15, 2016.
(x) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise
of convertible securities, warrants or options referred to in the Registration Statement, the General Disclosure Package and the
Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(xi) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xii) Authorization
and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable;
and the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company.
The Common Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement,
the General Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining
the same. No holder of Securities will be subject to personal liability by reason of being such a holder.
(xiii) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale by the Company under the 1933 Act, other than those rights that
have been disclosed in the General Disclosure Package and the Prospectus and, to the extent of any rights to have securities registered
for sale pursuant to the Registration Statement, that have been waived or expired.
(xiv) Absence
of Violations. Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its charter,
by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which
any of the properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”),
except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of
any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body,
administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that
would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package
and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities
as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder
have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges
or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter, by-laws or similar organizational document of the Company or any of its subsidiaries
or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment
Event” means any event or condition, other than those events or conditions that have been disclosed in the General Disclosure
Package and the Prospectus, which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
(xv) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result
in a Material Adverse Effect.
(xvi) Absence
of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there
is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge
of the Company, threatened, against or affecting the Company or any of its subsidiaries, which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect their respective
properties or assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company of
its obligations hereunder (including, without limitation, the issuance and delivery of the Securities); and the aggregate of all
pending legal or governmental proceedings to which the Company or any such subsidiary is a party or of which any of their respective
properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the
Prospectus, including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material
Adverse Effect.
(xvii) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement or to be
filed as exhibits thereto which have not been so described and filed as required.
(xviii) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or
decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement, except such as (i) have been already obtained or (ii) as may be required under the rules of the NASDAQ Stock
Market LLC, state securities laws or filings that may be required under the 1933 Act or the 1933 Act Regulations.
(xix) Possession
of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse
Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xx) Title
to Property. The Company and its subsidiaries have good and marketable title to all real property owned by them and good title
to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure
Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure Package and the Prospectus,
are in full force and effect, and neither the Company nor any such subsidiary has received any notice of any claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease, in each case where such claim, if adversely determined, would result in a Material Adverse
Effect.
(xxi) Possession
of Intellectual Property. The Company and its subsidiaries own or possess, or have the right to use all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, except where the failure to so own, possess, license
or have the right would not result in a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
(xxii) Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any applicable federal, state, local or foreign statute, law, rule, regulation, ordinance, code or rule of common law or any
applicable judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products, asbestos-containing materials or toxic mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals required
for their respective operations as currently operated under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending (or, to the knowledge of the Company, threatened) administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, or investigation or proceedings
relating to any Environmental Law against the Company or any of its subsidiaries and (D) to the knowledge of the Company, there
are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxiii) Accounting
Controls. The Company and each of its subsidiaries maintain effective internal control over financial reporting (as defined
under Rule 13-al5 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization;
(B) records are maintained in reasonable detail that accurately and fairly reflect the transactions and dispositions of the assets
of the Company or its subsidiaries; (C) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (D) access to assets is permitted only in accordance with management’s
general or specific authorization; (E) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; (F) unauthorized acquisition, use or disposition of
the Company’s assets that could have a material effect on its financial statements is prevented or timely detected; (G) material
information relating to the Company or its subsidiaries is made known to officers of the Company and its subsidiaries; (H) any
fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
or its subsidiaries’ internal accounting controls is disclosed to the Company’s external auditors and the audit committee
of the Company’s board of directors (or persons fulfilling the equivalent function); and (I) the interactive data in extensible
Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus
fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules
and guidelines applicable thereto. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus,
and for which remediation plans have been developed and implemented, since the end of the Company’s most recent audited fiscal
year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company and the audit
committee of the board of directors have taken all actions necessary and sufficient to remedy the weaknesses to the Company’s
disclosure controls and procedures and internal controls disclosed in the General Disclosure Package and the Prospectus and the
Company reasonably believes that no additional remedial action with respect to such weaknesses should be taken. The Company
and each of its subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and
Rule 15d-l 5 under the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including
its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
(xxiv) Payment
of Taxes. All United States federal income tax returns of the Company and its subsidiaries required by law to be filed have
been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments
against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. No audit notice
has been received by the Company nor has any assessment been made against the Company in connection with the Company’s United
States federal income tax returns through the fiscal year ended December 31, 2015. The Company and its subsidiaries have filed
all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law except
insofar as the failure to file such returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been established by the Company. The charges, accruals and
reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined
are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to
the extent of any inadequacy that would not result in a Material Adverse Effect.
(xxv) Insurance.
The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers,
in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar
business, and all such insurance is in full force and effect. The Company has no reason to believe that it or any of its subsidiaries
will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect. Neither of the Company nor any of its subsidiaries has been denied any insurance coverage
which it has sought or for which it has applied.
(xxvi) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the General Disclosure Package and the Prospectus will not be required, to register
as an “investment company” under the Investment Company Act of 1940, as amended.
(xxvii) Absence
of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take,
directly or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in
a violation of Regulation M under the 1934 Act.
(xxviii)
Lending Relationship. Except as disclosed in the General Disclosure Package and the Prospectus, the Company (i) does not
have any material lending or other relationship with any bank or lending affiliate of any Underwriter and (ii) does not intend
to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
(xxix) Statistical
and Market-Related Data. Any statistical and market-related data included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after
reasonable inquiry, to be reliable and accurate and, to the extent required, the Company has obtained the written consent to the
use of such data from such sources.
(xxx) Foreign
Corrupt Practices Act. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation by such persons of (i) the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the FCPA, (ii) the Xxxxxxx Xxx 0000 of the
United Kingdom, as amended (the “Xxxxxxx Xxx 0000”), or (iii) any other applicable anti-bribery statute or regulation;
and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance
with the XXXX, Xxxxxxx Xxx 0000, and all other applicable anti-bribery statutes and regulations, and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxi) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder, and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “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 Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(xxxii) OFAC.
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or representative of the Company or any of its subsidiaries is, or is 50% or more owned or otherwise controlled by a person that
is, (i) currently the subject or the target of any applicable 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 (“OFAC”)), the
United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”),
or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in
a country or territory that is the subject or target of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan,
Syria and Crimea); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other
manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter,
advisor, investor or otherwise) of Sanctions. Except as is not material to the analysis under any Sanctions, the Company and its
subsidiaries have not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any
dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction,
is or was the subject or target of Sanctions.
(xxxiii)
Xxxxxxxx-Xxxxx. There is and has been no material 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 Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans
and Sections 302 and 906 related to certifications.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale
and Delivery to Underwriters: Closing.
(a) Initial
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the price per share set forth in Schedule A, that proportion of the number of Initial Securities
set forth in Schedule B opposite the name of the Company which the number of Initial Securities set forth in Schedule A opposite
the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Securities, subject, in each case, to such
adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases
of fractional shares.
(b) Option
Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional
1,275,000 shares of Common Stock at the price per share set forth in Schedule A, less an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in whole or in part from time to time upon notice
by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery,
which may not be earlier than the Closing Time (a “Date of Delivery”), shall be determined by the Representatives,
but if at any time other than the Closing Time, shall not be earlier than two nor later than seven full business days after the
delivery of such notice of exercise of said option. If the option is exercised as to all or any portion of the Option Securities,
each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears
to the total number of Initial Securities, subject, in each case, to adjustments for any additional number of Option Securities
which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof and such adjustments as
the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
(c) Payment.
Payment of the purchase price for, and delivery of certificates for, the Initial Securities shall be made at the offices of Xxxx
Xxxxxxxx LLP at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives
and the Company, at 9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York City time)
on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all
of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for,
such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by
wire transfer of immediately available funds to bank account(s) designated by the Company against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives,
individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price
for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(d) Denominations;
Registration. Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and the Option Securities, if any,
will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. (
New
York City time) on the business day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements
of Rule 430B, and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment
to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii)
of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, including any document incorporated by reference therein, or for additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus,
or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e)of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection
with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the
time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and
in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to
the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be)
required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration
Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General
Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, 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
not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration
Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of
such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration
Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior
to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the
Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to
which the Representatives or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representatives
notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company
will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and
will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as
the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall
reasonably object.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters,
upon request, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference
therein and signed copies of all consents and certificates of experts relating thereto), and will also deliver to the Representatives,
upon request, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities
is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Blue
Sky Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Underwriters, to qualify
the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign)
as the Representatives may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Rule
158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in
the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing.
The Company will use its best efforts to effect and maintain the listing of the Common Stock (including the Securities) on the
Nasdaq Global Select Market.
(i) Restriction
on Sale of Securities. During a period of 90 days from the date of the Prospectus, the Company will not, without the prior
written consent of RBC, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any
shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise. 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 (or satisfaction of a condition to the
issuance of) a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package
and the Prospectus, (C) any offer of shares, any shares of Common Stock issued or any options to purchase Common Stock granted
pursuant to employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and
the Prospectus (including the Employee Stock Purchase Plan), (D) any shares of Common Stock issued pursuant to any non-employee
director stock plan or dividend reinvestment plan referred to in the General Disclosure Package and the Prospectus, (E) any rights
issued under any shareholder rights plan adopted by the Company or (F) any registration statement on Form S-8 under the 1933 Act
with respect to the foregoing.
(j) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall
report the use of proceeds from the issuance of the Shares as may be required under Rule 463 under the 1933 Act.
(k) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has
not made and it 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,” or a portion thereof, required to be filed by the Company with
the Commission or retained by the Company under Rule 433; provided that the Company and the Representatives will be deemed to have
consented to the Issuer Free Writing Prospectuses listed on Schedule C-2 hereto and any “road show that is a written communication”
within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Company and the Representatives. The Company represents that
it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives
as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable
requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record
keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading,
the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally
filed and each amendment thereto, (ii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities
to the Underwriters, (iii) the fees and disbursements of the Company’s counsel, accountants and other advisors, (iv) the
qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (v) the preparation, printing and delivery to the Underwriters of
copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements
thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (vi) the fees
and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation,
expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company
in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company
and any such consultants; provided that the Company and the Underwriters shall each pay 50% of the cost of aircraft and other transportation
chartered in connection with the road show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel
to the Underwriters (such reasonable fees of counsel not to exceed $25,000) in connection with, the review by FINRA of the terms
of the sale of the Securities and (ix) the fees and expenses incurred in connection with the listing of the Securities on the Nasdaq
Global Select Market. It is understood, however, that except as provided in Section 4, Section 6 entitled “Indemnification”
and Section 7 entitled “Contribution,” the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel.
(b) Termination
of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5(m), Section
9(a)(i) or (iii) or Section 10 hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions
of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company or
any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective
and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus
has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge,
threatened by the Commission; and the Company has complied with each request (if any) from the Commission for additional information.
(b) Opinion
of Counsel for Company. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing
Time, of Holland & Knight LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers
and other representatives of the Company and its subsidiaries and certificates of public officials.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the favorable opinion, dated the
Closing Time, of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters, together
with signed or reproduced copies of such letter for each of the other Underwriters.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received
a certificate of the Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer
of the Company, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations
and warranties of the Company in Section 1(a) hereof are true and correct with the same force and effect as though expressly made
at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus
has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, threatened
by the Commission.
(e) Chief
Financial Officer’s Certificate. At each of the time of execution of this Agreement and the Closing Time, the Representatives
shall have received from the chief financial officer of the Company a certificate, dated as of the date of this Agreement and the
Closing Time, respectively, in form and substance satisfactory to the Representatives, relating to the accuracy of certain preliminary
and other financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) Accountants’
Comfort Letter. At the time of the execution of this Agreement, the Representatives shall have received from Xxxxx Xxxxxxxx
LLP a letter, dated the date of this Agreement, in form and substance satisfactory to the Representatives, together with signed
or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus.
(g) Bring-down
Comfort Letter. At the Closing Time, the Representatives shall have received from Xxxxx Xxxxxxxx LLP a letter, dated as of
the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this
Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(h) Approval
of Listing. At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Global Select Market, subject
only to official notice of issuance.
(i) No
Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements relating to the offering of the Securities.
(j) Lock-up
Agreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of
Exhibit A hereto signed by the persons listed on Schedule D hereto.
(k) Conditions
to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company or any of its subsidiaries hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) Chief
Financial Officer’s Certificate. A certificate, dated such Date of Delivery, of the chief financial officer of the Company
confirming that the certificate delivered at the Closing Date pursuant to Section 5(e) hereof remains true and correct as of such
Date of Delivery.
(ii) Officers’
Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery.
(iii) Opinion
of Counsel for Company. If requested by the Representative, the favorable opinion of Holland & Knight LLP, counsel for
the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section
5(b) hereof.
(iv) Opinion
of Counsel for Underwriters. If requested by the Representative, the favorable opinion of Xxxx Xxxxxxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5 (c) hereof.
(v) Bring-Down
Comfort Letter. If requested by the Representative, a letter from Xxxxx Xxxxxxxx LLP, in form and substance satisfactory to
the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished pursuant
to this paragraph shall be a date not more than three business days prior to such Date of Delivery.
(l) Additional
Documents. At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
(m) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be,
and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7, 8, 14 and 15 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined
in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included or incorporated by reference in any preliminary prospectus, any Issuer Free Writing
Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representative), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, any preliminary prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter
Information.
(b) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, any preliminary prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter
Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected
by the Representative, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for the reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of the Underwriters,
on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant
to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received
by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such
Underwriter under this Agreement.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number
of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations.
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter,
its officers or directors, any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representatives may terminate this Agreement by notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the General
Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, in each case the effect of which is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities
or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the completion of the offering
or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the Nasdaq Global Select Market, or (iv) if trading generally on the NYSE MKT or the
New York Stock Exchange or in the Nasdaq Global Select Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission,
FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14 and 15 shall survive such termination
and remain in full force and effect.
SECTION 10. Default
by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”),
the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company
to sell, the Option Securities to be purchased and sold on such Date of Delivery, shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section
shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which
does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which
does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option
Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time
or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes
in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used
herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the RBC Capital Markets,
LLC, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx Xxxxxxxx, Syndicate Director, Fax: (000) 000-0000
and to Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration (Fax: (000) 000-0000),
with a copy, in the case of any notice pursuant to Section 6(c), to the Director of Litigation, Office of the General Counsel,
Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to Xxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxx Xxxx and Xxxxxxx Xxxxx; notices to the Company shall be directed to it at 0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000, attention of Xxxxxxx X. Xxxxx, with a copy to Holland & Knight LLP, 0000 Xxxxxx Xxxxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, attention of Xxxxxxxx Xxxxxxx.
SECTION 12. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts
and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is
and has been acting solely as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries or their respective
stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering of the Securities or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company, any of its subsidiaries on other matters) and no
Underwriter has any obligation to the Company with respect to the offering of the Securities except the obligations expressly
set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering of the Securities and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon each of the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and their respective successors and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Underwriters, the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. Trial
by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters 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.
SECTION 15. GOVERNING
LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE PERFORMED IN
NEW YORK.
SECTION 16. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 17. Partial
Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
SECTION 18. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement.
SECTION 19. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
[Remainder of Page Intentionally Blank]
If the foregoing is in accordance with
your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the respective Underwriters and the Company in accordance with its
terms.
Very truly yours, |
|
THE KEYW HOLDING CORPORATION |
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
Name: |
Xxxxxxx X. Xxxxx |
|
Title: |
President and CEO |
|
CONFIRMED AND ACCEPTED, |
|
as of the date first above written: |
|
|
|
RBC CAPITAL MARKETS, LLC |
|
|
|
By: |
/s/ Xxxx Xxxx |
|
Name: |
Xxxx Xxxx |
|
Title: |
Managing Director |
|
|
|
|
BARCLAYS CAPITAL INC. |
|
|
|
|
By: |
/s/ Xxxxxxxx Xxxx |
|
Name: |
Xxxxxxxx Xxxx |
|
Title: |
Vice President |
|
For themselves and as Representatives of the other Underwriters
named in Schedule A hereto.
SCHEDULE A
The public offering price per share for the Securities shall
be $10.50.
The purchase price per share for the Securities to be paid by
the several Underwriters shall be $9.975, being an amount equal to the public offering price set forth above less $0.525 per share.
Name of Underwriter | |
Number of Initial Securities | |
| |
| |
RBC Capital Markets, LLC | |
| 3,825,000 | |
| |
| | |
Barclays Capital Inc. | |
| 2,550,000 | |
| |
| | |
SunTrust Xxxxxxxx Xxxxxxxx, Inc. | |
| 1,105,000 | |
| |
| | |
Chardan Capital Markets, LLC | |
| 255,000 | |
| |
| | |
Xxxxxx Xxxxxxxx | |
| 255,000 | |
| |
| | |
Maxim Group LLC | |
| 255,000 | |
| |
| | |
Noble Capital Markets, Inc. | |
| 255,000 | |
| |
| | |
Total | |
| 8,500,000 | |
SCHEDULE B
SCHEDULE C-1
Pricing Terms
1. The
Company is selling 8,500,000 shares of Common Stock.
2. The
Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 1,275,000 shares
of Common Stock.
3. The
public offering price per share for the Securities shall be $10.50.
SCHEDULE C-2
Issuer Free Writing Prospectuses
A. Issuer
General Use Free Writing Prospectuses
Press Release dated January 26, 2017 filed as an issuer free
writing prospectus on January 26, 2017
B. Issuer
Limited Use Free Writing Prospectuses
SCHEDULE D
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxx Xxxx
Xxxxx Xxxxxx
Xxxxxxxx X. XxXxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Money
Xxxxxxxx X. Xxxxxx
The Xxxxxxxx X. Xxxxxx 2009 Irrevocable Trust
Xxxx X. Xxxx
Xxxx Xxxxxxx
EXHIBIT A
FORM OF LOCK UP AGREEMENT