Exhibit No. 1.1 Executed Purchase Agreement dated September 30, 2010
Exhibit No.
1.1
Executed
Purchase Agreement dated September 30, 2010
EXECUTION
VERSION
THE KEYW
HOLDING CORPORATION
(a
Maryland corporation)
9,100,000
Shares of Common Stock
Dated:
September 30, 2010
THE KEYW
HOLDING CORPORATION
(a
Maryland corporation)
9,100,000
Shares of Common Stock
September
30, 2010
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
000
Xxxxxxxxx Xxxxxx XX
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx 00000
as
Representative of the several Underwriters
Ladies
and Gentlemen:
The KEYW
Holding Corporation, a Maryland corporation (the “Company”), and Xxxxxxx X.
Xxxxx, Xxxxxxxxx X. Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxxx and MAF Partners, LLC
(the “Selling Shareholders”), confirm their respective agreements with SunTrust
Xxxxxxxx Xxxxxxxx, Inc. (“SunTrust”) 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 SunTrust is acting as representative (in such capacity, the
“Representative”), with respect to (i) the sale by the Company and the Selling
Shareholders, acting severally and not jointly, 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 1,365,000
additional shares of Common Stock to cover overallotments, if
any. The aforesaid 9,100,000 shares of Common Stock (the
“Initial Securities”) to be purchased by the Underwriters and all or any part of
the 1,365,000 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 and the Selling Shareholders understand that the Underwriters propose to
make a public offering of the Securities as soon as the Representative deems
advisable after this Agreement has been executed and delivered.
The
Company, the Selling Shareholders and the Underwriters agree that up to
100,000 shares of the Initial Securities to be purchased by the
Underwriters (the “Reserved Securities”) shall be reserved for sale by the
Underwriters to certain persons designated by the Company (the “Invitees”), as
part of the distribution of the Securities by the Underwriters, subject to the
terms of this Agreement, the applicable rules, regulations and interpretations
of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and all other
applicable laws, rules and regulations. The Company solely
determined, without any direct or indirect participation by the Underwriters,
the Invitees who will purchase Reserved Securities (including the amount to be
purchased by such persons) sold by the Underwriters. To the extent
that such Reserved Securities are not orally confirmed for purchase by Invitees
by 9:00 A.M. (New York City time) on the first business day after the date of
this Agreement, such Reserved Securities may be offered to the public as part of
the public offering contemplated hereby.
1
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1 (No. 333-167608), including the
related preliminary prospectus or prospectuses, covering the registration of the
sale of the Securities under the Securities Act of 1933, as amended (the “1933
Act”). Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of
Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the
1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the
1933 Act Regulations. The information included in such prospectus
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective pursuant to Rule 430A(b) is herein called the “Rule
430A Information.” Such registration statement, including the
amendments thereto, the exhibits thereto and any schedules thereto, at the time
it became effective, and including the Rule 430A Information, is herein called
the “Registration Statement.” Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule
462(b) Registration Statement” and, after such filing, the term “Registration
Statement” shall include the Rule 462(b) Registration Statement. Each
prospectus used prior to the effectiveness of the Registration Statement, and
each prospectus that omitted the Rule 430A Information that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a “preliminary prospectus.” The final prospectus, in
the form first furnished to the Underwriters for use in connection with the
offering of the Securities, is herein called 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
(“XXXXX”) or its Interactive Data Electronic Applications system (“IDEA”).
As used
in this Agreement:
“Applicable
Time” means 6:30 P.M., New York City time, on September 30, 2010 or such other
time as agreed by the Company and the Representative.
“General
Disclosure Package” means any Issuer General Use Free Writing Prospectuses
issued at or prior to the Applicable Time, the prospectus that is included in
the Registration Statement as of 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 (the “Bona Fide Electronic Road Show”)), as
evidenced by its being specified in Schedule C-2 hereto.
2
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
Each of
the Registration Statement and any post-effective amendment thereto, at the time
it became effective, complied in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations. Each preliminary
prospectus (including the prospectus filed as part of the Registration Statement
as originally filed or as part of any amendment or supplement thereto), at the
time it was filed, and the Prospectus complied in all material respects with the
1933 Act and the 1933 Act Regulations. Each preliminary prospectus
delivered to the Underwriters for use in connection with this offering and the
Prospectus was or will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX or IDEA, except to the
extent permitted by Regulation S-T.
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 Representative 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,” the information in the second, third
and fourth paragraphs under the heading “Underwriting–Price Stabilization, Short
Positions and Penalty Bids” in the Prospectus and the information under the
heading “Underwriting–Electronic Offer, Sale and Distribution of Shares” (collectively,
the “Underwriter Information”).
3
4
5
6
7
8
9
10
(vi) Delivery of
Securities. The Securities to be sold by the Selling
Shareholder pursuant to this Agreement are certificated securities in registered
form and are not held in any securities account or by or through any securities
intermediary within the meaning of the Uniform Commercial Code as in effect in
the State of New York (the “UCC”). Certificates for all of the
Securities to be sold by the Selling Shareholder pursuant to this Agreement, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures guaranteed, have
been placed in custody with the Company, as custodian (the “Custodian”) with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
11
(c)
Officer’s
Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representative 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; and any
certificate signed by or on behalf of the Selling Shareholders as such and
delivered to the Representative or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be deemed a representation and warranty by the
Selling Shareholders to the Underwriters as to the matters covered
thereby.
12
(c) Payment. Payment
of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
LLP at 0000 Xxxxxxxxxxxx Xxx XX, Xxxxxxxxxx, XX, 00000, or at such other place
as shall be agreed upon by the Representative and the Company and the Selling
Shareholders, 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 Representative and the
Company and the Selling Shareholders (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 Representative
and the Company, on each Date of Delivery as specified in the notice from the
Representative to the Company.
Payment
shall be made to the Company and the Selling Shareholders by wire transfer of
immediately available funds to bank account(s) designated by the Company and the
Custodian pursuant to the Selling Shareholders’ Power of Attorney and Custody
Agreement, as the case may be, against delivery to the Representative 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 Representative, 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
Representative, individually and not as representative 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.
13
(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 Representative 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
Representative 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.
14
15
16
17
(d) Opinion of Counsel for
Underwriters. At Closing Time, the Representative shall have
received the favorable opinion, dated the Closing Time, of Xxxxxx Xxxxxxxx Xxxxx
& 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. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
securities laws of the United States, upon the opinions of counsel satisfactory
to the Representative. 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.
18
19
(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 the Rule 430A Information, 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 in any preliminary
prospectus, any Issuer Free Writing Prospectus 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;
20
(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(e) 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 the Rule 430A Information, 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.
21
(f) Indemnification for Reserved
Securities. In connection with the offer and sale of the
Reserved Securities, the Company agrees to indemnify and hold harmless the
Underwriters, their Affiliates and selling agents and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, from and against any and all loss, liability,
claim, damage and expense (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending, investigating or
settling any such action or claim), as incurred, (i) arising out of the
violation of any applicable laws or regulations of foreign jurisdictions where
Reserved Securities have been offered, (ii) arising out of any untrue statement
or alleged untrue statement of a material fact contained in any prospectus
wrapper or other material prepared by or with the consent of the Company for
distribution to Invitees in connection with the offering of the Reserved
Securities or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) caused by the failure of any Invitee to pay for
and accept delivery of Reserved Securities which have been orally confirmed for
purchase by any Invitee by 9:00 A.M. (New York City time) on the first business
day after the date of the Agreement or (iv) related to, or arising out of or in
connection with, the offering of the Reserved Securities.
22
The
relative benefits received by the Company and the Selling Shareholders, 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 and the Selling Shareholders, 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 and the Selling Shareholders, 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 the Selling Shareholders or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or any
violation of the nature referred to in Section 6(f) hereof.
The
Company, the Selling Shareholders 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 amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
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.
23
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 or the Selling Shareholders 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 or the Selling Shareholders, as the case
may be. 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.
The
provisions of this Section shall not affect any agreement among the Company and
the Selling Shareholders with respect to contribution.
(a) Termination. The
Representative may terminate this Agreement by notice to the Company and the
Selling Shareholders, 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 Market,
or (iv) if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq Global 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.
24
(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) Representative or (ii) the Company and the Selling
Shareholders 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.
(a) If
a Selling Shareholder shall fail at the Closing Time or a Date of Delivery, as
the case may be, to sell and deliver the number of Securities which the Selling
Shareholder is obligated to sell hereunder, then the Underwriters may, at option
of the Representative, by notice from the Representative to the Company, either
(i) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7, 8, 15
and 16 shall remain in full force and effect or (ii) elect to purchase the
Securities which the Company has agreed to sell hereunder. No action
taken pursuant to this Section 11 shall relieve the Selling Shareholder so
defaulting from liability, if any, in respect of such default.
In the
event of a default by a Selling Shareholder as referred to in this
Section 11, each of the Representative and the Company shall have the right
to postpone the Closing Time or any Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required change in the
Registration Statement, the General Disclosure Package or the Prospectus or in
any other documents or arrangements.
(b) If
the Company shall fail at the Closing Time or a Date of Delivery, as the case
may be, to sell the number of Securities that it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6,
7, 8, 15 and 16 shall remain in full force and effect. No action
taken pursuant to this Section shall relieve the Company from liability, if any,
in respect of such default.
25
26
27
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company and the Attorney-in-Fact for the Selling Shareholders
a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Company and the
Selling Shareholders in accordance with its terms.
Very
truly yours,
|
||
THE
KEYW HOLDING CORPORATION
|
||
By
|
/s/ Xxxxxxx X.
Xxxxxxxxx
|
|
Title: Chairman,
President and CEO
|
||
XXXXXXX
X. XXXXXXXXX
|
||
By
|
/s/ Xxxxxxx X.
Xxxxxxxxx
|
|
As
Attorney-in-Fact acting on behalf of
|
||
the
Selling Shareholders named in
|
||
Schedule
B
hereto
|
CONFIRMED
AND ACCEPTED, as of the date first above written:
SUNTRUST
XXXXXXXX XXXXXXXX, INC.
|
||
By:
|
/s/ Xxxxxxxxx X.
XxXxxxx
|
|
Director
|
For
itself and as Representative of the other Underwriters named in Schedule A
hereto.
28
SCHEDULE
A
The
initial public offering price per share for the Securities shall be
$10.00.
The
purchase price per share for the Securities to be paid by the several
Underwriters shall be $9.30, being an amount equal to the initial public
offering price set forth above less $0.70 per share.
Name of Underwriter
|
Number of
Initial Securities
|
|||
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
5,460,000 | |||
FBR
Capital Markets & Co.
|
1,365,000 | |||
Xxxxxxxx
Curhan Ford & Co.
|
1,137,500 | |||
Noble
Financial Capital Markets
|
1,137,500 | |||
Total
|
9,100,000 |
Sch A –
1
SCHEDULE
B
Number of Initial
Securities to be Sold
|
||||
THE
KEYW HOLDING CORPORATION
|
8,274,090 | |||
XXXXXXX
X. XXXXX
|
300,000 | |||
XXXXXXXXX
X. XXXX
|
75,000 | |||
XXXXX
XXXXXXXX
|
60,000 | |||
XXXXXX
XXXXXX
|
300,000 | |||
MAF
PARTNERS, LLC
|
90,910 | |||
Total
|
9,100,000 |
Sch B – 1
SCHEDULE
C-1
Pricing
Terms
1. The
Company and the Selling Shareholders are selling 9,100,000 shares of Common
Stock.
2.
|
The
Company has granted an option to the Underwriters, severally and not
jointly, to purchase up to an additional 1,365,000 shares of Common
Stock.
|
3. The
initial public offering price per share for the Securities shall be
$10.00.
Sch C –
1
SCHEDULE
C-2
Free Writing
Prospectuses
Sch C –
2
SCHEDULE
D
List of Persons and Entities
Subject to Lock-up
Corporate
Office Properties, L.P.
GEF
Capital Company Holdings, LLC
The
Xxxxxx Family, LLC
Vedanta
Opportunities Fund, L.P.
Xxxxxxxx
X. Xxxxxx
Xxxxxx
Xxxxxx
X. Xxxxxx
Xxxxx
Xxxxx X.
Xxxxxxxx
Thunderclap
Holdings, LLC
Xxxx X.
Xxxxxx Revocable Trust U/A DTD 03/09/04
Xxxxxxx
X. Xxxxxxxxx 2009 Grantor Retained Annuity Trust
Xxxxxxx
X. Xxxxxxxxx
Xxxxx
Xxxx
Alpha
Technology Ltd.
PER
Holdings, LLC
Xxxxxxxxx
X. Xxxx
Xxxxxxx
X. Xxxxxx
Xxxxxxxx
X. XxXxxxxx
Xxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxx
Xxxxxx X.
Xxxxxxxxx
*Xxxxxx
Xxxxxxxx, Xx.
Xxxx X.
Xxxxxxx
*Xxxxxx
X. Xxxxxx
*Xxxx
Xxxxx
*Xxxx X.
Xxxxxxxx
*Xxxxx X.
Xxxxxxxxx
Xxxxxxxxx
Xxx
*Xxxxx X.
Xxxxx
Xxxx
Xxxx
Xxxxx
Xxxxxx
*Xxxxx
Xxx
Xxxxxx X.
Money
Xxxxxxx
X. Xxxxxxx
*Xxxxxxx
X. Xxxxx
*Xxxxxxx
X. Xxxxxxx
*Xxxxxxx
X. Xxxxxx
*Xxxxx X.
Xxxxxxx
*Xxxxxxx
X. Xxxxxx
*Xxxx
XxXxxxxx
* Indicates
shares that are locked up pursuant to founding agreement.
Sch D –
1
Exhibit
A
,
2010
Sun Trust
Xxxxxxxx Xxxxxxxx, Inc.
000
Xxxxxxxxx Xxxxxx, XX
00xx
Xxxxx
Xxxxxxx,
XX 00000
as
Representative of the several Underwriters
to be
named in the within-mentioned
Re: Proposed Public Offering by
The KEYW Holding Corporation
Dear
Sirs:
The
undersigned, a stockholder, which may also be an officer and/or director, of The
KEYW Holding Corporation, a Maryland corporation (the “Company”), understands
that Sun Trust Xxxxxxxx Xxxxxxxx, Inc. (the “Representative”) proposes to enter
into a Purchase Agreement (the “Purchase Agreement”) with the Company and the
Selling Shareholders providing for the public offering of shares (the
“Securities”) of the Company’s common stock, par value $0.001 per share (the
“Common Stock,” and such public offering, the “Public Offering”). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder, which may also be an officer and/or director, of
the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of 180
days from the date of the Purchase Agreement, the undersigned will not, without
the prior written consent of the Representative, directly or indirectly, (i)
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 for
the sale of, or otherwise dispose of or transfer any shares of the Company’s
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or file, or cause to be filed, any registration statement under the
Securities Act of 1933, as amended (the “Securities Act”), with respect to any
of the foregoing (collectively, the “Lock-Up Securities”) 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
Lock-Up Securities, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding
the foregoing, and subject to the conditions below, the undersigned may transfer
the Lock-Up Securities without the prior written consent of the Representative,
provided that (1) the Representative receive a signed lock-up agreement for the
balance of the lockup period from each donee, trustee, distributee, or
transferee, as the case may be, (2) any such transfer shall not involve a
disposition for value, (3) such transfers are not required to be reported with
the Securities and Exchange Commission on Form 4 in accordance with Section 16
of the Securities Exchange Act of 1934, as amended (the ‘Exchange Act”), and (4)
the undersigned does not otherwise voluntarily effect any public filing or
report regarding such transfers:
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(i)
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as
a bona fide gift
or gifts; or
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(ii)
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to
any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned (for purposes of this lock-up
agreement, “immediate family” shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin);
or
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(iii)
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as
a distribution to limited partners, members or stockholders of the
undersigned; or
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(iv)
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to
the undersigned’s affiliates or to any investment fund or other entity
controlled or managed by the
undersigned.
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Furthermore,
the undersigned may sell shares of Common Stock of the Company purchased by the
undersigned on the open market following the Public Offering if and only if (i)
such sales are not required to be reported in any public report or filing with
the Securities Exchange Commission, or otherwise and (ii) the undersigned does
not otherwise voluntarily effect any public filing or report regarding such
sales. In addition, the undersigned may enter into a written plan
meeting the requirements of Rule 10b5-1 under the Exchange Act, provided that no
direct or indirect offers, pledges, sales, contracts to sell, sales of any
option or contract to purchase, purchase of any option or contract to sell,
grants of any option, right or warrant to purchase, loans, or other transfers or
disposals of any Lock-Up Securities may be effected under such plan during the
180-day lock-up period (as it may be extended pursuant to this lock-up
agreement).Notwithstanding the foregoing, if:
(1) during
the last 17 days of the 180-day lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs;
or
(2) prior
to the expiration of the 180-day lock-up period, the Company announces that it
will release earnings results or becomes aware that material news or a material
event will occur during the 16-day period beginning on the last day of the
180-day lock-up period,
The
Representative may extend, by written notice to the Company, the restrictions
imposed by this lock-up agreement until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event, as applicable.
The
undersigned hereby acknowledges and agrees that written notice of any extension
of the 180-day lock-up period pursuant to the previous paragraph will be
delivered by the Representative to the Company (in accordance with Section 13 of
the Purchase Agreement) and that any such notice properly delivered will be
deemed to have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the terms of this lock-up agreement during the period
from the date of this lock-up agreement to and including the 34th day
following the expiration of the initial 180-day lock-up period, it will give
notice thereof to the Company and will not consummate such transaction or take
any such action unless it has received written confirmation from the Company
that the 180-day lock-up period (as may have been extended pursuant to the
previous paragraph) has expired.
The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of the
Lock-Up Securities except in compliance with the foregoing
restrictions.
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Notwithstanding anything to the
contrary contained in this lock-up agreement, this lock-up agreement shall
automatically terminate if (1) prior to completion of the Public Offering, the
Company informs the Representative, or the Representative, on behalf of the
underwriters, informs the Company, in writing, of their intent not to proceed
with the Public Offering, (2) prior to the completion of the Public Offering,
the Company files with the SEC a Request for Withdrawal of the Registration
Statement pursuant to Rule 477 of the Securities Act of 1933, as amended, or (3)
the completion of the Public Offering has not occurred on or before the one year
anniversary of the date of this lock-up agreement. This lock-up
agreement may also be terminated by mutual written agreement of the undersigned,
the Company and the Representative. This lock-up agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Very
truly yours,
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Signature:
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Print
Name:
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