Exhibit
1.1
Surgery Partners, Inc.
8,000,000
Shares of Common Stock
Underwriting Agreement
December 14, 2023
Xxxxxxxxx LLC
000 Xxxxxxx Xxxxxx
New York, New York 10022
Ladies and Gentlemen:
Certain stockholders named in Schedule 1 hereto (the “Selling
Stockholders”) of Surgery Partners, Inc., a Delaware corporation (the “Company”), propose to sell to Xxxxxxxxx
LLC (the “Underwriter”) an aggregate of 8,000,000 shares of common stock, par value $0.01 per share, of the Company (the “Shares”).
The shares of common stock of the Company to be outstanding after giving effect to the sale of the Shares are referred to herein as the
“Stock”.
The Company and the Selling Stockholders, as applicable,
hereby confirm their agreement with the Underwriter concerning the purchase and sale of the Shares, as follows:
1. Registration
Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-252399), including a prospectus, relating to the Shares. Such registration statement,
as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means
each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the
time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form
first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation
of sales of the Shares. Any reference in this underwriting agreement (this “Agreement”) to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment” or “supplement”
with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined
below), the Company had prepared the following information (collectively with the pricing information set forth on Annex A, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated December 14, 2023 and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time” means 4.30 pm, New York City time, on
December 14, 2023.
2. Purchase
of the Shares.
(a) Each
of the Selling Stockholders agrees, severally and not jointly, to sell the Shares to the Underwriter as provided in this underwriting
agreement (this “Agreement”), and the Underwriter, on the basis of the representations, warranties and agreements set forth
herein and subject to the conditions set forth herein, agrees to purchase the Shares as provided in this Agreement from each of the Selling
Stockholders at a price per share of $33.44 (the “Purchase Price”).
(b) The
Selling Stockholders understand that the Underwriter intends to make a public offering of the Shares, and initially to offer the Shares
on the terms set forth in the Pricing Disclosure Package. The Selling Stockholders acknowledge and agree that the Underwriter may offer
and sell Shares to or through any affiliate of the Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to the account specified by the Selling Stockholders to the
Underwriter in the case of the Shares, at the offices of Xxxxxx & Xxxxxxx LLP at 10:00 A.M., New York City time, on December 19,
2023, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Underwriter
and the Selling Stockholders may agree upon in writing. The time and date of such payment for the Shares is referred to herein as the
“Closing Date.”
(d) Payment
for the Shares to be purchased on the Closing Date shall be made against delivery to the account of the Underwriter of the Shares to be
purchased on the Closing Date with any transfer taxes payable in connection with the sale of such Shares duly paid by the Selling Stockholders.
Delivery of the Shares shall be made through the facilities of The Depository Trust Company (“DTC”), unless the Underwriter
shall otherwise instruct. The certificates for the Shares will be made available for inspection and packaging by the Underwriter at the
office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(e) Each
of the Company and each Selling Stockholder acknowledge and agree that the Underwriter is acting solely in the capacity of an arm’s
length contractual counterparty to the Company and the Selling Stockholders with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of,
the Company, the Selling Stockholders or any other person. Additionally, the Underwriter is not advising the Company, the Selling Stockholders
or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Selling
Stockholders shall consult with their own advisors concerning such matters and each shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriter shall not have any responsibility or liability
to the Company or the Selling Stockholders with respect thereto. Any review by the Underwriter of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriter and shall not be on
behalf of the Company or the Selling Stockholders. Moreover, the Selling Stockholders acknowledge and agree that, although the Underwriter
may be required or choose to provide the Selling Stockholders with certain Regulation Best Interest and Form CRS disclosures in connection
with the offering, the Underwriter is not making a recommendation to any Selling Stockholder to participate in the offering, enter into
a “lock-up” agreement, or sell any Shares at the price determined in the offering, and nothing set forth in such disclosures
is intended to suggest that the Underwriter is making such a recommendation.
3. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriter and the Selling Stockholders that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the applicable
requirements of the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished
by the Underwriter consists of the information described as such in Section 9(c) hereof.
(b) Pricing
Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date will not, contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished
to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that
the only such information furnished by the Underwriter consists of the information described as such in Section 9(c) hereof.
No statement of material fact included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material
fact included in the Pricing Disclosure Package that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer
Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriter in its capacity as such) has not prepared, made, used, authorized, approved
or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares (each such communication
by the Company or its agents and representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road
show and any other written communications approved in writing in advance by the Underwriter. Each such Issuer Free Writing Prospectus
complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed
in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained in the Registration
Statement or the Pricing Disclosure Package, and, when taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in such Issuer Free Writing Prospectus
or Preliminary Prospectus, it being understood and agreed that the only such information furnished by the Underwriter consists of the
information described as such in Section 9(c) hereof.
(d) Registration
Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405
of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued
by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related
to the offering of the Shares has been initiated or, to the knowledge of the Company, threatened by the Commission; as of the applicable
effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective
amendment complied and will comply in all material respects with the applicable requirements of the Securities Act, and did not and will
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of
the Closing Date the Prospectus will comply in all material respects with the applicable requirements of the Securities Act and will not
contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or
warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter
furnished to the Company in writing by the Underwriter expressly for use in the Registration Statement and the Prospectus and any amendment
or supplement thereto, it being understood and agreed that the only such information furnished by the Underwriter consists of the information
described as such in Section 9(c) hereof.
(e) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package,
when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such
documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference
in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(f) Financial
Statements. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly in all material respects
the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations
and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) in the United States applied on a consistent basis throughout the periods covered
thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly in all material
respects the information required to be stated therein; and the other financial information included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Company
and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby; all disclosures included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of Commission) comply with Regulation G of the Exchange
Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable.
(g) No
Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by reference
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the capital
stock (other than the issuance of shares of common stock of the Company upon exercise of stock options and warrants described as outstanding
in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus), short-term debt or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution
of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change,
or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither
the Company nor any of its subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business)
that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that
is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained
any loss or interference with its business that is material to the Company and its subsidiaries taken as a whole and that is either from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(h) Organization
and Good Standing. The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing
under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction
in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and
have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business, properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company of
its obligations under this Agreement (a “Material Adverse Effect”). The subsidiaries listed in Schedule 2 to this Agreement
are the only significant subsidiaries of the Company.
(i) Capitalization.
The Company has the authorized, issued and outstanding shares of capital stock as set forth or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the caption “Capitalization” (except for subsequent issuances,
if any, pursuant to reservations, agreements or employee benefit plans referred to in the Pricing Disclosure Package and the Prospectus
or pursuant to the exercise of convertible securities or options referred to in the Pricing Disclosure Package and the Prospectus). The
outstanding shares of capital stock of the Company (including the Shares to be sold by the Selling Stockholders) 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 (including the
Shares to be sold by the Selling Stockholders) were issued in violation of the preemptive or other similar rights of any securityholder
of the Company.
(j) Due
Authorization. The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations
hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and
the consummation by it of the transactions contemplated hereby has been duly and validly taken.
(k) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(l) The
Shares. The Shares to be sold by each of the Selling Stockholders hereunder conform in all material respects to the descriptions thereof
in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(m) Description
of the Underwriting Agreement. This Agreement conforms in all material respects to the description thereof contained in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(n) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) 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 any
such entity is a party or by which it or any of them may be bound or to which any of the properties or assets of any of the Company or
any subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, individually
or in the aggregate, be reasonably expected to result in a Material Adverse Effect, or (iii) in violation of any law, statute, rule,
regulation, judgment, order, writ or decree (collectively, “Applicable Law”) of any entity or body exercising executive, legislative,
judicial, regulatory or administrative functions of United States federal, state, local or municipal government, including any authority
or other quasi-governmental entity established by and to which authority shall have been delegated by a governmental body, or other authority,
body or agency, in each case, 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, individually or in the aggregate,
be reasonably expected to result in a Material Adverse Effect.
(o) No
Conflicts. The execution, delivery and performance of this Agreement, the issuance by the Company of the Shares to be issued upon
the exercise of the Options (as hereinafter defined) and compliance by the Company with its obligations hereunder have been duly authorized
by all necessary corporate action of the Company 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 Agreement,
except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, individually or in
the aggregate, be reasonably expected to result in a Material Adverse Effect, nor will such action result in any violation of (A) the
applicable charter or bylaws or similar organizational documents of the Company or any subsidiary or (B) any law, statute, rule,
regulation, judgment, order, writ or decree of any Governmental Entity, except, with respect to clause (B), such violations as would not
reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition
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 subsidiary.
(p) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the issuance
by the Company of the Shares to be issued upon the exercise of the Options and the consummation of the transactions contemplated by this
Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and
under applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriter.
(q) Absence
of Proceedings. Except as described in the Registration Statement, the Pricing 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 be reasonably expected to result in a Material
Adverse Effect, or which would be reasonably expected to materially and adversely affect their respective properties or assets or the
performance by the Company of its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in
the Pricing Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not be reasonably
expected to result in a Material Adverse Effect.
(r) Independent
Accountants. Deloitte & Touche LLP, who have certified certain financial statements of the Company and its subsidiaries,
is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities
Act.
(s) Title
to Properties. 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 that are material to the Company, in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (i) are described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus or (ii) do not, individually or in the aggregate, materially affect the value of such property
and do not materially 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 the subsidiaries, considered as one enterprise, under
which the Company or any of its subsidiaries holds properties described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, are in full force and effect, and neither the Company nor any such subsidiary has any notice of any material 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.
(t) Intellectual
Property Rights. The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate 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 for those the failure to own or have such legal right
to use would not be reasonably expected to result in a Material Adverse Effect, and neither the Company nor any of its subsidiaries has
received written notice 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, which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, individually or in the aggregate, would be reasonably expected to result in a Material Adverse Effect.
(u) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on
the one hand, and the directors, officers, stockholders, customers, suppliers or other affiliates of the Company or any of its subsidiaries,
on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that
is not so described in such documents and in the Pricing Disclosure Package.
(v) Investment
Company Act. The Company is not required to register as an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Investment Company Act”).
(w) Tax
Law Compliance. All federal, state, local and foreign tax returns of the Company and its subsidiaries required by law to be filed
have been filed insofar as the failure to file such returns would not, individually or in the aggregate, by reasonably expected to result
in a Material Adverse Effect, and all taxes due and payable, and any related or similar assessment, fine or penalty levied against the
Company and its subsidiaries have been paid, other than taxes that are being contested in good faith and as to which adequate reserves
have been established by the Company in accordance with GAAP, except in any case in which the failure to pay would not, individually or
in the aggregate, be reasonably expected to result in a Material Adverse Effect. The charges, accruals and reserves on the financial statements
of the Company in respect of any income, corporation, franchise and other material tax liability for any years not finally determined
have been established in accordance with GAAP and 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, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect. No tax deficiency has been determined adversely to the Company or any of its subsidiaries,
nor does the Company have any knowledge of any tax deficiencies that have been, or would reasonably be expected to be, asserted against
the Company or any subsidiary that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x) Possession
of Licenses and Permits. The Company, its subsidiaries and the joint ventures set forth in Schedule 3 hereto (the “JVs”)
possess such certificates, consents, exemptions, orders, licenses, authorities, accreditations, provider or supplier numbers, certificates
of need or permits issued by the appropriate Governmental Entities (collectively, “Permits”) necessary to conduct the business
now owned, operated or managed by them including but not limited to such Permits as are required (i) under Health Care Laws (as defined
herein) and (ii) with respect to those facilities owned, operated or managed by the Company or any of its subsidiaries or the JVs
that participate in Medicare, Medicaid or any other local, state or federal government health care program, to receive reimbursement thereunder,
except where the failure to so possess would not be reasonably expected to result in a Material Adverse Effect. The Company, its subsidiaries,
and the JVs are in compliance with the terms and conditions of all Permits, except where the failure to so comply would not be reasonably
expected to result in a Material Adverse Effect. All of the Permits are valid and in full force and effect, except when the invalidity
of such Permits or the failure of such Permits to be in full force and effect would not be reasonably expected to result in a Material
Adverse Effect. None of the Company or any of its subsidiaries or the JVs has received written notice of proceedings relating to the revocation
or modification of any such Permit that, if the subject of an unfavorable decision, ruling or finding, would be reasonably expected to
result in a Material Adverse Effect.
(y) No
Labor Disputes. No labor dispute with the employees of the Company or, to the knowledge of the Company, its subsidiaries exists or,
to the knowledge of the Company, is imminent, except as would not be reasonably expected to result in a Material Adverse Effect.
(z) Certain
Environmental Matters. Except as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package or as
would not, individually or in the aggregate, be reasonably expected to 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, policy or rule of common law or any 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 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 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,
investigations 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.
(aa) Compliance
with ERISA. Except as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (i) each
“employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (collectively, “ERISA”)), whether or not subject to ERISA, for which the Company
or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations
thereunder (the “Code”)) has any liability (each, a “Plan”) has been maintained in compliance with its terms and
with the requirements of all applicable statutes, rules and regulations, including ERISA and the Code; (ii) neither the Company
nor any member of its Controlled Group has in the past six (6) years incurred, or reasonably expects to incur, any liability under
Title IV of ERISA in respect of a Plan (including a “multiemployer plan,” within the meaning of Section 4001(c)(3) of
ERISA); (iii) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which would cause the loss of such qualification; (iv) there is no pending audit
or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other
governmental agency with respect to any Plan; and (v) neither the Company nor any subsidiary has incurred any liability for any prohibited
transaction, the failure of any Plan to meet the minimum funding standards required by law, including by ERISA or the Code, or any complete
or partial withdrawal liability with respect to any Plan.
(bb) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined
in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls
and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(cc) Accounting
Controls. The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under
the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with GAAP. The Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package fairly presents the information called for in all material respects and is
prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(dd) 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 similarly sized and situated companies of established repute engaged
in the same or similar business, and all such insurance is in full force and effect, except where failure to carry such insurance would
not be reasonably expected to result in a Material Adverse Effect.
(ee) Cybersecurity;
Data Protection. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, and free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards designed to
maintain and protect their material confidential information and the security of all IT Systems and data (including all personal, personally
identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there
have been no breaches, violations, outages or unauthorized uses of or accesses to same, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have implemented business continuity / disaster
recovery plans and technology consistent with industry standards and practice. The Company and its subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification including
the Data Privacy and Security Laws (“Data Protection Requirements”), except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. To ensure compliance with the Data Protection Requirements, the Company and
its subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects
with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis
of Personal Data (the “Policies”). The Company and its subsidiaries have at all times made all material disclosures to patients
or other individuals required by applicable Data Protection Requirements, and none of such disclosures made or contained in any Policy
have, to the knowledge of the Company, been inaccurate or in violation of any applicable Data Protection Requirements in any material
respect. The execution, delivery and performance of this Agreement or any other agreement referred to in this Agreement will not result
in a breach or violation of any Data Protection Requirements or Policies, except where such breach or violation would not, individually
or in the aggregate, have a Material Adverse Effect. The Company further certifies that neither it nor any subsidiary: (i) has received
notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Data Protection Requirements,
and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently
conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Data Protection
Requirement; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability by any governmental
authority under any Data Protection Requirement.
(ff) Foreign
Corrupt Practices Act. None of the Company or any of its subsidiaries (including any JV controlled by the Company), any of the directors
and officers thereof, or any controlled affiliate thereof, or, to the knowledge of the Company, any JV in which the Company holds a minority
interest, non-controlled affiliate, agent, employee, or other person acting on behalf of the Company, any of its subsidiaries or any of
the JVs is aware of, has taken or will take any action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or similar law
of any other relevant jurisdiction, 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 and the Company, it subsidiaries (including any JV controlled by the Company) and any affiliates thereof, and to the knowledge of
the Company, any JV in which the Company holds a minority interest, have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(gg) Compliance
with Anti-Money Laundering Laws. The operations of the Company, its subsidiaries (including any JV controlled by the Company) and,
to the knowledge of the Company, the JVs in which the Company holds a minority interest, 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 applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries
(including any JV controlled by the Company) or, to the knowledge of the Company, the JVs in which the Company holds a minority interest,
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) OFAC.
None of the Company, any of its subsidiaries (including any JV controlled by the Company) or any of their respective directors and
officers, or any of the Company’s controlled affiliates, or, to the knowledge of the Company, any JVs in which the Company holds
a minority interest, non-controlled affiliate, agent, employee or representative of the Company or any of the subsidiaries or JVs is an
individual or entity (“Person”), or is owned or controlled by a Person, currently the subject or target of any sanctions administered
or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign
Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, His Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor located, organized or
resident in a country or territory that is the subject or target of Sanctions (at the time of this Agreement, Cuba, Iran, North Korea,
Syria, Crimea, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic) (each, a “Sanctioned
Country”); and for the past five years, the Company and its subsidiaries and JVs have not knowingly engaged in, are not now knowingly
engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of
the dealing or transaction is or was the subject of Sanctions.
(ii) No
Restrictions on Subsidiaries. No
subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party
or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock
or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(jj) No
Broker’s Fees. Neither the Company nor any of its affiliates has engaged any broker, finder, commission agent or other person
(other than the Underwriter) in connection with the offering of Shares contemplated hereby, and neither the Company nor any of its affiliates
is under any obligation to pay any broker’s fee or commission in connection with the offering of Shares contemplated hereby.
(kk) No
Registration Rights. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no person
has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason
of the filing of the Registration Statement with the Commission or the sale of the Shares to be sold by the Selling Stockholders hereunder.
(ll) No
Stabilization. Neither the Company nor any of its subsidiaries or affiliates has taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(mm) [Reserved].
(nn) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply with any applicable provision of the Xxxxxxxx-Xxxxx Act of 2002, as amended 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.
(oo) Status
under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under
the Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” and is a
well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act.
(pp) Third-Party
Payors. Except as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package or as would not, individually
or in the aggregate, be reasonably expected to result in a Material Adverse Effect, the accounts receivable of the Company and each of
its subsidiaries and JVs have been adjusted to reflect contractual allowances provided to third-party payors, private insurance companies,
health maintenance organizations, preferred provider organizations, alternative delivery systems, managed care systems, government contracting
agencies and other third-party payors and the rates established by governmental payors, including Medicare, Medicaid and, in some instances,
for workers’ compensation claims. In particular, accounts receivable relating to such third-party payors do not exceed amounts any
obligee is entitled to receive under any capitation arrangement, fee schedule, discount formula, cost-based reimbursement or other adjustment
or limitation to its usual charges.
(qq) Compliance
with Health Care Laws. Except as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package or except
as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, each of the Company, its subsidiaries
and the JVs is, and at all times has been, in compliance with all applicable Health Care Laws, and has not engaged in activities which
are, as applicable, cause for false claims liability, civil penalties, or mandatory or permissive exclusion from Medicare, Medicaid, or
any other state health care program or federal health care program. For purposes of this Agreement, “Health Care Laws” means
all Applicable Laws of any Governmental Entity pertaining to health care regulatory matters applicable to the operations of the Company,
its subsidiaries or its JVs, including (i) federal, state and local health care related fraud and abuse laws, including, without
limitation, state corporate practice of medicine laws and regulations, state professional fee-splitting laws and regulations, state workers’
compensation laws and regulations, the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Xxxxx Law (42 U.S.C. Section 1395nn),
the Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), all criminal
laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal
provisions under HIPAA (as defined below), the exclusion laws (42 U.S.C. § 1320a-7), the civil monetary penalties law (42 U.S.C.
§ 1320a-7a), any applicable state fraud and abuse prohibitions, including those that apply to all payors (governmental, commercial
insurance and self-payors), each as amended, and the implementing rules and regulations promulgated pursuant to such statutes; (ii) Medicare
(Title XVIII of the Social Security Act); (iii) Medicaid (Title XIX of the Social Security Act), and the regulations promulgated
thereunder; (iv) (a) the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d-1329d-8,
as amended by the Health Information Technology for Economic and Clinical Health Act, enacted as Title XIII of the American Recovery and
Reinvestment Act of 2009, Public Law 111-5 (“HIPAA”); (b) all applicable implementing laws and regulations; and (c) any
similar state and local Applicable Laws regarding data protection, data processing, data privacy, data security and/or the collection,
use, storage, disclosure or cross-border transfer of personal data and information, including protected health information (collectively,
including HIPAA, the “Data Privacy and Security Laws”); (v) any state and federal controlled substance and drug
diversion laws, including the Federal Controlled Substances Act (21 U.S.C. § 801, et seq.) and the regulations promulgated
thereunder; (vi) the Clinical Laboratory Improvement Amendments of 1988, 42 U.S.C. § 263a et seq.; (vii) any
Applicable Law pertaining to or regulating the provision or administration of, or payment for, healthcare products and services (such
services include physician and allied professional services and related ancillary services); (viii) and Applicable Law regulating
the ownership or operation of a health care facility or business, or assets used in connection therewith, including licensing, certification
and/or accreditation requirements; and (ix) any and all other health care laws and regulations, each as amended from time to time,
applicable to the operations of the Company, its subsidiaries or its JVs. Except as described in the Registration Statement, the Prospectus
and the Pricing Disclosure Package, none of the Company, any subsidiary or any of the JVs has received written notice from any Governmental
Entity of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action alleging that any of the
Company, the subsidiaries or the JVs is in material violation of any Health Care Laws, and, to the Company’s knowledge, no such
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action is threatened. Except as described in
the Registration Statement, the Prospectus and the Pricing Disclosure Package, none of the Company, any subsidiary or any of the JVs is
a party to or has any ongoing reporting obligations pursuant to any corporate integrity agreements, deferred prosecution agreements, monitoring
agreements, consent decrees, settlement orders, plans of correction or similar agreements with or imposed by any Governmental Entity.
Additionally, none of the Company, its subsidiaries, or the JVs nor any of their respective employees, officers or directors has been
excluded, suspended or debarred from participation in any U.S. federal health care program or is subject to a governmental inquiry, investigation,
proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(rr) Program
Participation. Except as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package, the Company,
its subsidiaries, and the JVs, as applicable, meet all material requirements of participation of the Programs, are a party to valid participation
agreements for payment by such Programs, and has not at any time violated in any material respects any condition of participation, condition
of payment or any rule, regulation or policy or standard of any Program. None of the Company, its subsidiaries or the JVs, has received
notice from any of the Programs of any pending or threatened investigations that would result in exclusion or debarment from any such
Programs or the termination of any Program participation or payor agreement. “Programs” shall mean Medicare, Medicaid,
and any other local, state or federal health care program as well as other third-party payor programs, including, but not limited to private
insurance companies, health maintenance organizations, preferred provider organizations, alternative delivery systems, and managed care
systems, that the Company, its subsidiaries and the JVs, as applicable, participate in or has contracts with.
(ss) Program
Claims and Filings. Except as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package or except
as would not be reasonably expected to result in, individually or in the aggregate, a Material Adverse Effect, to the Company’s
knowledge, all reports, data, and information required to be filed by the Company, its subsidiaries, and the JVs in connection with any
Program have been timely filed and were true and complete at the time filed (or were corrected in or supplemented by a subsequent filing).
Except as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package, none of the Company, its subsidiaries
and the JVs has submitted to any Program any false or fraudulent claim for payment. Except as described in the Registration Statement,
the Prospectus and the Pricing Disclosure Package, there are no claims, actions or appeals pending (and the Company, its subsidiaries,
and the JVs have not made any filing or submission that would result in any claims, actions or appeals) before any Governmental Entity
with respect to any Program reports or claims filed by the Company, or any of its subsidiaries or the JVs on or before the date hereof,
or with respect to any disallowances by any Governmental Entity in connection with any audit or any claims that, if adversely determined,
which would be reasonably expected to result in, individually or in the aggregate, a Material Adverse Effect. Except as described in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, no validation review or program integrity review related to
the Company, or any of its subsidiaries or the JVs has been conducted by any governmental entity in connection with any Program within
the past three (3) years which, if determined adversely to the Company or any of its respective subsidiaries or JVs, has had, or
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and to the Company’s knowledge,
no such reviews are scheduled, pending, threatened against or affecting the Company or any of its subsidiaries or JVs. Except in the ordinary
course of business or as set forth in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there are no material suspensions, offsets or recoupments of any Program being sought, requested or claimed, or to the knowledge
of the Company, threatened against the Company, its subsidiaries or the JVs.
(tt) Company
Providers. The Company and each of its subsidiaries and JVs is in material compliance with all Applicable Laws regarding the selection,
deselection, and credentialing of contracted or employed healthcare providers, including, but not limited to, verification of licensing
status and eligibility for reimbursement under the Programs. Except as has not had, and would not be reasonably expected to result in,
individually or in the aggregate, a Material Adverse Effect, all of the Company’s, its subsidiaries’ and the JVs’ contracted
or employed healthcare providers are properly licensed and hold appropriate clinical privileges, as applicable, for the services that
they provide, and, with respect to providers that perform services eligible for reimbursement under any Program, are not debarred or excluded
from any such Program
(uu) The
Options. The unissued Shares issuable upon the exercise of options (the “Options”) to be exercised by certain of the Selling
Stockholders (the “Optionholders”) have been duly authorized by the Company and validly and reserved for issuance, and at
the time of delivery to the Underwriter with respect to such Shares, such Shares will be issued and delivered in accordance with the provisions
of the Stock Option Agreements between the Company and such Selling Stockholders pursuant to which such Options were granted (the “Option
Agreements”) and will be validly issued, fully paid and non-assessable and will conform to the description thereof in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(vv) The
Option Agreements. The Options were duly authorized and issued pursuant to the Option Agreements and constitute valid and binding
obligations of the Company and the Optionholders are entitled to the benefits provided by the Option Agreements; the Option Agreements
were duly authorized, executed and delivered and constitute valid and legally binding agreements enforceable against the Company in accordance
with their terms except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’
rights generally or by equitable principles relating to enforceability; and the Options and the Option Agreements conform to the descriptions
thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
4. Representations
and Warranties of the Selling Stockholders. Each of the Selling Stockholders severally represents and warrants to the Underwriter
and the Company that:
(a) Required
Consents; Authority. All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder
of this Agreement, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained; and
such Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder hereunder, except (A) for such consents as may have been obtained under the Act and
for such consents as may be required under the Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the
Shares by the Underwriter and such other approvals as have been obtained or (B) for such consents, approvals, authorizations or orders
as would not, individually or in the aggregate, materially adversely affect such Selling Stockholder’s ability to perform its obligations
hereunder or materially impair the validity or enforceability of this Agreement; this Agreement has been duly authorized, executed and
delivered by such Selling Stockholder.
(b) No
Conflicts. The execution, delivery and performance by such Selling Stockholder of this Agreement, the sale of the Shares to be sold
by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated herein or therein will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any property or asset of such Selling Stockholder pursuant to,any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound or to which any of the property or asset of such Selling Stockholder is subject, (ii) result
in any violation of the provisions of the charter or by-laws or similar organizational documents of such Selling Stockholder (to the extent
not a natural person) or (iii) result in the violation of any law or statute applicable to such Selling Stockholder or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory agency having jurisdiction over such Selling Stockholder
or the property or asset of such Selling Stockholder, except in the case of clause (i) or clause (iii), for such conflicts, breaches,
violations or defaults as would not, individually or in the aggregate, materially adversely affect such Selling Stockholder’s ability
to perform its obligations hereunder or materially impair the validity or enforceability of this Agreement.
(c) Title
to Shares. Such Selling Stockholder has good and valid title to the Shares to be sold at the Closing Date by such Selling Stockholder
hereunder (other than the Shares to be issued upon exercise of Options), free and clear of all liens, encumbrances, equities or adverse
claims; such Selling Stockholder will have, immediately prior to the Closing Date, assuming due issuance of any Shares to be issued upon
exercise of Options, good and valid title to the Shares to be sold at the Closing Date by such Selling Stockholder, free and clear of
all liens, encumbrances, equities or adverse claims; and, upon delivery of the certificates representing such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or adverse claims, will pass
to the Underwriter.
(d) No
Stabilization. Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(e) Pricing
Disclosure Package. The Pricing Disclosure Package, at the Applicable Time did not, and as of
the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (A) such Selling
Stockholder makes no representation and warranty with respect to any statements or omissions, other than with respect to information relating
to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished by such Selling Stockholder consists solely of the information
with respect to such Selling Stockholder described under the caption “Selling Stockholders” in the Registration Statement,
the General Disclosure Package and the Prospectus (the “Selling Stockholder Information”) and (B) such Selling Stockholder
makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package,
it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such
in Section 9(c) hereof.
(f) Issuer
Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, such Selling Stockholder
(including its agents and representatives, other than the Underwriter in its capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus, other than
(i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under
the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications
approved in writing in advance by the Company and the Underwriter.
(g) Registration
Statement and Prospectus. As of the applicable effective date of the Registration Statement and any post-effective amendment thereto,
the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities
Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date the Prospectus will not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that (A) such Selling Stockholder makes no representation and warranty with respect to any statements or omissions,
other than with respect to the Selling Stockholder Information and (B) such Selling Stockholder makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished
to the Company in writing by the Underwriter expressly for use in the Registration Statement, the Pricing Disclosure Package and the Prospectus
and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by the Underwriter consists
of the information described as such in Section 9(c) hereof.
(h) [Reserved]
The Selling Stockholders specifically agree that
the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity
of the Selling Stockholders, or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination
of such estate or trust, or in the case of a partnership, corporation or similar organization, by the dissolution of such partnership,
corporation or organization, or by the occurrence of any other event. If the Selling Stockholders or any such executor or trustee should
die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership, corporation or similar organization
should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such
Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and conditions of this Agreement.
5. Further
Agreements of the Company. The Company covenants and agrees with the Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and
Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the
Shares; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered)
to the Underwriter in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement
in such quantities as the Underwriter may reasonably request. The Company will pay the registration fee for this offering within the time
period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior
to the Closing Date.
(b) Delivery
of Copies. The Company will deliver, without charge, (i) to the Underwriter, three signed copies of the Registration Statement
as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated
by reference therein; and (ii) to the Underwriter (A) a conformed copy of the Registration Statement as originally filed and
each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the
Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing
Prospectus) as the Underwriter may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period
of time after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter a prospectus relating
to the Shares is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection
with sales of the Shares by any Underwriter or dealer.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement, the Pricing Disclosure
Package or the Prospectus, whether before or after the time that the Registration Statement becomes effective, the Company will furnish
to the Underwriter and counsel for the Underwriter a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for
review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Underwriter reasonably objects.
(d) Notice
to the Underwriter. The Company will advise the Underwriter promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective upon filing; (ii) when any amendment to the Registration Statement has been filed or becomes effective;
(iii) when any supplement to the Pricing Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus or any amendment
to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement
or any other request by the Commission for any additional information; (v) of the issuance by the Commission or any other governmental
or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event or development within
the Prospectus Delivery Period as a result of which the Prospectus, any of the Pricing Disclosure Package or any Issuer Free Writing Prospectus
as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any
such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice
of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act; and (viii) of the receipt by the Company of any notice with respect to any suspension of the qualification of
the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending
any such qualification of the Shares and, if any such order is issued, will use its reasonable best efforts to obtain as soon as possible
the withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist
as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will promptly notify the Underwriter thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission
and furnish to the Underwriter and to such dealers as the Underwriter may designate such amendments or supplements to the Prospectus (or
any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the
Prospectus as so amended or supplemented (or any document to be filed with the Commission and incorporated by reference therein) will
not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law and (2) if at any time prior to the Closing Date (i) any event or development shall occur or condition
shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances
existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement
the Pricing Disclosure Package to comply with law, the Company will promptly notify the Underwriter thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriter and to such dealers
as the Underwriter may designate such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the
Commission and incorporated by reference therein) as may be necessary so that the statements in the Pricing Disclosure Package as so amended
or supplemented will not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser,
be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue
Sky Compliance. The Company will qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Underwriter shall reasonably request and will continue such qualifications in effect so long as required for distribution of the
Shares; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service
of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its security holders and the Underwriter as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement; provided that the Company will be deemed to have furnished such
statements to its security holders and the Underwriter to the extent that they are filed on the Commission’s Electronic Data Gathering,
Analysis and Retrieval system.
(h) Clear
Market. For a period of 45 days after the date of the Prospectus, the Company will not (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 to purchase, lend,
or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the Commission a registration statement under
the Securities Act relating to, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock, or publicly
disclose the intention to undertake any of the foregoing, or (ii) enter into any swap or other agreement that transfers, in whole
or in part, any of the economic consequences of ownership of the Stock or any such other securities, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise, without the
prior written consent of the Underwriter, other than the Shares to be sold hereunder.
The restrictions described above do not apply to
(i) the issuance of shares of Stock or securities convertible into or exercisable for shares of Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise of warrants or options (including net exercise) or the settlement
of RSUs (including net settlement), in each case outstanding on the date of this Agreement and described in the Prospectus; (ii) grants
of stock options, stock awards, restricted stock, RSUs, or other equity awards and the issuance of shares of Stock or securities convertible
into or exercisable or exchangeable for shares of Stock (whether upon the exercise of stock options or otherwise) to the Company’s
employees, officers, directors, advisors, or consultants pursuant to the terms of an equity compensation plan in effect as of the Closing
Date and described in the Prospectus, provided that such recipients enter into a lock-up agreement with the Underwriter; (iii) the
filing of any registration statement on Form S-8 relating to securities granted or to be granted pursuant to any plan in effect on
the date of this Agreement and described in the Prospectus or any assumed benefit plan pursuant to an acquisition or similar strategic
transaction; or (iv) the filing of any registration statement on Form S-4 or other appropriate form with respect to the issuance
by the Company of shares of any class of the common stock of the Company or any securities convertible into or exercisable or exchangeable
for shares of any class of the Company’s common stock in connection with future business combinations or acquisitions (or the entering
into of an acquisition or similar agreement with respect thereto); provided that, in the case of clause (iv), the aggregate number
of shares of common stock issued in connection with, all such business combinations or acquisitions does not exceed 5% of the aggregate
number of shares of common stock outstanding immediately following the offering of shares pursuant to this Agreement and the recipient
of the shares of common stock agrees in writing to be bound by the same terms described in the “lock-up” agreement described
in Section 8(m) hereof.
(i) [Reserved]
(j) No
Stabilization. Neither the Company nor its subsidiaries or affiliates will take, directly or indirectly, without giving effect to
activities by the Underwriter, any action designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Stock.
(k) Exchange
Listing. The Company will use its reasonable best efforts to list for quotation the Shares on the Nasdaq Global Market (the “Nasdaq
Market”).
(l) Reports.
During a period of three years from the date of this Agreement, the Company will furnish to the Underwriter, as soon as commercially reasonable
after the date they are available, copies of all reports or other communications (financial or other) furnished to holders of the Shares,
and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or automatic
quotation system; provided the Company will be deemed to have furnished such reports and financial statements to the Underwriter
to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system, or any successor to
such system.
(m) Record
Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(n) Xxxxx
Xxxxxxx. If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration
Statement, any of the Shares remain unsold by the Underwriter, the Company will, prior to the Renewal Deadline, file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Underwriter.
If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if
it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Underwriter,
and will use its reasonable best efforts to cause such registration statement to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or appropriate to permit the sale of the Shares to continue as contemplated
in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement, as the case may be.
6. Further
Agreements of the Selling Stockholders. Each of the Selling Stockholders severally covenants and agrees with the Underwriter that:
(a) Tax
Form. It will deliver to the Underwriter prior to or at the Closing Date a properly completed
and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by the Treasury Department
regulations in lieu thereof) in order to facilitate the Underwriter’s documentation of its compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated.
(b) Use
of Proceeds. It will not directly or knowingly indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute
or otherwise make available such proceeds to a subsidiary, joint venture partner or other person or entity (i) to fund or facilitate
any activities of or business with any person that, at the time of such funding or facilitation, is the subject of target of Sanctions
(ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result
in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise)
of Sanctions.
7. Certain
Agreements of the Underwriter. The Underwriter hereby agrees
that:
(a) It
has not and will not use, authorize use of, refer to or participate in the planning for use of, any “free writing prospectus”,
as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by
the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the
Securities Act) that was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed
Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or
Section 5(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter
and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter
Free Writing Prospectus”).
(b) It
has not and will not, without the prior written consent of the Company, use any free writing prospectus that contains the final terms
of the Shares unless such terms have previously been included in a free writing prospectus filed with the Commission; provided
that the Underwriter may use a term sheet substantially in the form of Annex B hereto without the consent of the Company; provided
further that the Underwriter using such term sheet shall notify the Company, and provide a copy of such term sheet to the Company,
prior to, or substantially concurrently with, the first use of such term sheet.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify
the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
8. Conditions
of Underwriter’s Obligations. The obligation of the Underwriter to purchase the Shares on the Closing Date as provided herein
is subject to the performance by the Company and each of the Selling Stockholders of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before
or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities
Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Underwriter.
(b) Representations
and Warranties. The respective representations and warranties of the Company and the Selling Stockholders contained herein shall be
true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers and of each
of the Selling Stockholders and their officers, where relevant, made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date.
(c) No
Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded any debt securities, convertible securities or preferred stock issued, or guaranteed
by, the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is
defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock issued
or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No
Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist,
which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in the judgment of the Underwriter makes it impracticable or inadvisable
to proceed with the offering, sale or delivery of the Shares on the Closing Date on the terms and in the manner contemplated by this Agreement,
the Pricing Disclosure Package and the Prospectus.
(e) Officer’s
Certificate. The Underwriter shall have received on and as of the Closing Date (x) a certificate of the chief financial officer
or chief accounting officer of the Company and one additional senior executive officer of the Company who is satisfactory to the Underwriter,
on behalf of the Company and not in their individual capacity, (i) confirming that such officers have carefully reviewed the Registration
Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations of the Company
set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect
set forth in paragraphs (a), (c) and (d) above and (y) a certificate of each of the Selling Stockholders, in form and substance
reasonably satisfactory to the Underwriter, (A) confirming that the representations of such Selling Stockholder set forth in Sections
4(e), 4(f) and 4(g) hereof is true and correct and (B) confirming that the other representations and warranties of such
Selling Stockholder in this agreement are true and correct and that the such Selling Stockholder has complied with all agreements and
satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(f) Comfort
Letters. On the date of this Agreement and on the Closing Date, Deloitte & Touche LLP shall have furnished to the Underwriter,
at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained or
incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that the
letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to such Closing Date.
(g) Opinion
and 10b-5 Statement of Counsel for the Company. Ropes & Gray LLP, counsel for the Company, shall have furnished to the Underwriter,
at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriter, in
form and substance reasonably satisfactory to the Underwriter.
(h) (h) Opinion
of Counsel for the Selling Stockholders. Xxxxxxxx &
Xxxxx LLP, counsel for the Selling Stockholders, shall have furnished to the Underwriter, at the request of the Selling Stockholders,
their written opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the
Underwriter.
(i) Opinion
and 10b-5 Statement of Counsel for the Underwriter. The Underwriter shall have received on and as of the Closing Date an opinion and
10b-5 statement, addressed to the Underwriter, of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriter, with respect to such matters
as the Underwriter may reasonably request, and such counsel shall have received such documents and information as it may reasonably request
to enable it to pass upon such matters.
(j) Opinion
of Regulatory Counsel for the Company. The Underwriter shall have received on and as of the Closing Date an opinion, addressed to
the Underwriter, from Holland & Knight, LLP, counsel to the Company for regulatory matters, in form and substance reasonably
satisfactory to the Underwriter.
(k) No
Legal Impediment to Sale. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the sale of
the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date,
prevent the sale of the Shares.
(l) Good
Standing. The Underwriter shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company
and its significant subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions
as the Underwriter may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental
authorities of such jurisdictions.
(m) Exchange
Listing. The Shares to be delivered on the Closing Date shall have been approved for listing on the Nasdaq Market, subject to official
notice of issuance.
(n) Lock-up
Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain
shareholders, certain named executive officers and directors of the Company, including the Selling Stockholders, relating to sales and
certain other dispositions of shares of Stock or certain other securities, delivered to you on or before the date hereof, shall be full
force and effect on the Closing Date.
(o) Additional
Documents. On or prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Underwriter such
further certificates and documents as the Underwriter may reasonably request.
All opinions, letters, certificates and evidence
mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriter.
9. Indemnification
and Contribution.
(a) Indemnification
of the Underwriter by the Company. The Company agrees to indemnify and hold harmless the Underwriter, its affiliates, directors and
officers and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities
Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”) or any Pricing Disclosure
Package, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages
or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly
for use therein, it being understood and agreed that the only such information furnished by the Underwriter consists of the information
described as such in paragraph (c) below.
(b) Indemnification
of the Underwriter by the Selling Stockholders. Each of the Selling Stockholders severally in proportion to the number of Shares to
be sold by such Selling Stockholder hereunder and not jointly, agrees to indemnify and hold harmless the Underwriter, its affiliates,
directors and officers and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, in each case, (A) solely
to the extent that such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with the Selling Stockholder Information and (B) except insofar
as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such in paragraph (c) below; provided, that the aggregate
liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate net proceeds from the
sale of Shares (after deducting underwriting discounts and commissions but before deducting expenses) sold by such Selling Stockholder
hereunder.
(c) Indemnification
of the Company and the Selling Stockholders. The Underwriter agrees to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and each of the Selling Stockholders to the same extent as the indemnity
set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information
relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration Statement, the
Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, any road show or
any Pricing Disclosure Package, it being understood and agreed upon that the only such information furnished by the Underwriter consists
of the following information in the Prospectus furnished on behalf of the Underwriter: the concession figure appearing in the third paragraph
under the caption “Underwriting” and the information contained in the fifteenth paragraph under the caption “Underwriting.”
(d) Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding paragraphs of this
Section 9, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have under the preceding paragraphs of this Section 9 except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further,
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under the preceding paragraphs of this Section 9. If any such proceeding shall be brought or asserted against an Indemnified
Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent
the Indemnified Person and any others entitled to indemnification pursuant to this Section 9 that the Indemnifying Person may designate
in such proceeding and shall pay the reasonable and documented fees and expenses in such proceeding and shall pay the reasonable and documented
fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall
have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any
such separate firm for the Underwriter, its affiliates, directors and officers and any control persons of the Underwriter shall be designated
in writing by the Underwriter and any such separate firm for the Company, its directors, its officers who signed the Registration Statement
and any control persons of the Company shall be designated in writing by the Company and any such separate firm for the Selling Stockholders
shall be designated in writing by the Selling Stockholders. The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, the Indemnifying Person agrees to indemnify each Indemnified Person
from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for reasonable and documented fees and expenses
of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request
and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(e) Contribution.
If the indemnification provided for in paragraphs (a), (b) or (c) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu
of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders, on the one hand, and the Underwriter on the other, from the offering of the Shares or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in the foregoing clause (i) but also the relative fault of the Company and the Selling
Stockholders, on the one hand, and the Underwriter, on the other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders, on the one hand, and the Underwriter on the other, shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Selling Stockholders from the sale of the Shares and the total
underwriting discounts and commissions received by the Underwriter in connection therewith, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate offering price of the Shares. The relative fault of the Company and the Selling Stockholders,
on the one hand, and the Underwriter on the other, shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company and the Selling Stockholders or by the Underwriter and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) Limitation
on Liability. The Company, the Selling Stockholders and the Underwriter agrees that it would not be just and equitable if contribution
pursuant to paragraph (d) above were determined by pro rata allocation (even if the Selling Stockholders were treated as one
entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in
paragraph (e) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs
(e) and (f), in no event shall the Underwriter be required to contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by the Underwriter with respect to the offering of the Shares exceeds the amount of any damages that
the Underwriter has otherwise been required to pay by reason of 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 Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation.
(g) Non-Exclusive
Remedies. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
10. Effectiveness
of Agreement. This Agreement shall become effective as of the date first written above.
11. Termination.
This Agreement may be terminated in the absolute discretion of the Underwriter, by notice to the Company and the Selling Stockholders,
if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by any of the New York Stock Exchange or The Nasdaq Stock Market; (ii) trading of any securities issued
or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium
on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Underwriter, is material and adverse and makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
12. Defaulting
Underwriter.
[Reserved].
13. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause
to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the
costs incident to the sale, preparation and delivery of the Shares and any taxes payable in that connection; (ii) the costs incident
to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer
Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto)
and the distribution thereof; (iii) the reasonable and documented fees and expenses of the Company’s counsel and independent
accountants; (iv) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility
for investment of the Shares under the laws of such jurisdictions as the Underwriter may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related reasonable and documented fees and expenses of counsel for the Underwriter not to exceed
$10,000); (v) the cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and any registrar;
(vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA (including
the related reasonable and documented fees and expenses of counsel for the Underwriter not to exceed $15,000; (viii) all expenses
incurred by the Company in connection with any “road show” presentation to potential investors; and (ix) all expenses
and application fees related to the listing of the Shares on the Nasdaq Market.
(b) If
(i) this Agreement is terminated pursuant to Section 11, (ii) the Selling Stockholders for any reason fails to tender the
Shares for delivery to the Underwriter or (iii) the Underwriter declines to purchase the Shares for any reason permitted under this
Agreement, the Company agrees to reimburse the Underwriter for all out-of-pocket accountable costs and expenses (including the fees and
expenses of its counsel) actually incurred by the Underwriter in connection with this Agreement and the offering contemplated hereby;
provided, however, that no additional amounts beyond what has been reimbursed pursuant to the foregoing will be owed to the Underwriter
other than under Section 9 hereof.
14. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred to herein, and the affiliates of the Underwriter referred
to in Section 9 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Shares from the Underwriter
shall be deemed to be a successor merely by reason of such purchase.
15. Survival.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Selling Stockholders
and the Underwriter contained in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the Underwriter pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholders or the Underwriter or the directors, officers, controlling persons or affiliates referred to in Section 9 hereof.
16. Certain
Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other
than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has
the meaning set forth in Rule 405 under the Securities Act.
17. Compliance
with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), the Underwriter is required to obtain, verify and record information that identifies their respective clients, including the Company
and the Selling Stockholders, which information may include the name and address of their respective clients, as well as other information
that will allow the Underwriter to properly identify its respective clients.
18. Miscellaneous.
(a) Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Underwriter shall be given to the Underwriter: Jefferies LLC,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000; Attention Equity Syndicate Desk. Notices to the Company shall be given to it at Surgery Partners, Inc.,
000 Xxxxx Xxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx, 00000, Attention: General Counsel, with a copy to: Ropes & Gray
LLP, Three Embarcadero Center, San Francisco, California 94111 Attention: X. Xxxxxx Xxxxxx, Esq.
(b) 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.
(c) Submission
to Jurisdiction. Each of the Company and the Selling Stockholders hereby submit to the exclusive jurisdiction of the U.S. federal
and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. Each of the Company and the Selling Stockholders waive any objection which it
may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each of the Company and the Selling Stockholders
agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company
and each Selling Stockholder, as applicable, and may be enforced in any court to the jurisdiction of which Company is subject by a suit
upon such judgment.
(f) Waiver
of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating
to this Agreement.
(g) Recognition
of the U.S. Special Resolution Regimes.
(i) In the event that the Underwriter
is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Underwriter of this
Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United
States or a state of the United States.
(ii) In the event that the Underwriter
is a Covered Entity or a BHC Act Affiliate of the Underwriter and becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against the Underwriter are permitted to be exercised to no greater extent than
such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United
States or a state of the United States.
As used in this Section 18(g):
“BHC Act Affiliate” has the
meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any
of the following:
(i) a “covered entity”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx
Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(h) Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each
of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,”
“signed,” “signature,” “delivery” and words of like import in or relating to this Agreement or any
document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature,
physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct
the transactions contemplated hereunder by electronic means. Electronic signatures complying with the New York Electronic Signatures and
Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures
for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this
Agreement will constitute due and sufficient delivery of such counterpart.
(i) Amendments
or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the parties hereto.
(j) Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very
truly yours, |
|
|
|
SURGERY
PARTNERS, INC. |
|
|
|
By: |
/s/ Xxxx Xxxxxxx |
|
|
Name: |
Xxxx Xxxxxxx |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
[Signature Page to Underwriting Agreement]
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very
truly yours, |
|
|
|
|
BCPE SEMINOLE HOLDINGS LP |
|
|
|
|
By: BCPE Seminole XX XX LLC, its general partner |
|
|
|
|
By: Xxxx Capital Investors, LLC, its sole member |
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
|
Title: |
Partner |
[Signature
Page to Underwriting Agreement]
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
|
BCPE
SEMINOLE HOLDINGS II INTERMEDIATE LP |
|
|
|
By:
BCPE Seminole XX XX LLC, its general partner |
|
|
|
By:
Xxxx Capital Investors, LLC, its sole member |
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
Partner |
[Signature Page to Underwriting Agreement]
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very
truly yours, |
|
|
|
By: |
/s/ Xxxxx X. XxXxxxx |
|
|
Name: |
Xxxxx X. XxXxxxx |
|
|
Title: |
Executive Chairman of the Board of Directors |
[Signature Page to
Underwriting Agreement]
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very
truly yours, |
|
|
|
By: |
/s/ X. Xxxx Xxxxx |
|
|
Name: |
X. Xxxx Xxxxx |
|
|
Title: |
Chief Executive Officer and Director |
[Signature Page to
Underwriting Agreement]
Accepted: As of the date first written above
|
Xxxxxxxxx
LLC |
|
|
|
By: |
/s/ Xxxxxxx Xxxx |
|
|
Name: |
Xxxxxxx Xxxx |
|
|
Title: |
Managing Director |
[Signature Page to Underwriting Agreement]
Schedule 1
Selling
Stockholder | |
Number
of
Shares: | |
BCPE Seminole Holdings LP | |
| 1,706,257 | |
BCPE Seminole Holdings II Intermediate LP | |
| 6,120,613 | |
Xxxxx X. XxXxxxx | |
| 168,130 | |
X. Xxxx Xxxxx | |
| 5,000 | |
Schedule 2
Significant Subsidiaries
[Attached.]
Schedule 3
Joint Ventures
[Attached.]
Annex A
a. Free
Writing Prospectuses Included in Pricing Disclosure Package
None.
b. Pricing
Information Provided Orally by Underwriter
Shares: 8,000,000
Public Offering Price Per Share: $33.44
Annex B
[Reserved]
Exhibit A
FORM OF LOCK-UP AGREEMENT
[Attached.]