Exhibit 1.1
EXECUTION VERSION
CLARUS CORPORATION
(a Delaware corporation)
2,750,000 Shares of Common
Stock
UNDERWRITING AGREEMENT
Dated: October 26, 2021
CLARUS CORPORATION
(a Delaware corporation)
2,750,000
Shares of Common Stock
UNDERWRITING AGREEMENT
BofA Securities, Inc. |
October 26, 2021 |
as Representative of the several Underwriters
c/o BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Clarus Corporation, a Delaware
corporation (the “Company”), confirms its agreement with BofA Securities, Inc. (“BofA”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted
as hereinafter provided in Section 10 hereof), for whom BofA is acting as Representative (in such capacity, the “Representative”),
with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective
numbers of shares of Common Stock, par value $0.0001 per share, of the Company (“Common Stock”) set forth in Schedule A hereto
and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 412,500 additional shares of Common Stock. The aforesaid 2,750,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or any part of the 412,500 shares of Common Stock subject to the option
described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
The Company understands that
the Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement
has been executed and delivered.
The Company has prepared
and filed with the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3
(File No. 333-254105) covering the public offering and sale of certain securities, including the Securities, under the Securities
Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act
Regulations”), which shelf registration statement has been declared effective by the Commission. Such registration statement, as
of any time, means such registration statement as amended by any post-effective amendments thereto to such time, including the exhibits
and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant
to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B
under the 1933 Act Regulations (“Rule 430B”), and is referred to herein as the “Registration Statement;”
provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended
by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered
the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of
Rule 430B, including the exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference
therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof
as of such time pursuant to the Rule 430B. Each preliminary prospectus used in connection with the offering of the Securities, including
the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act,
are collectively referred to herein as a “preliminary prospectus.” Promptly after execution and delivery of this Agreement,
the Company will prepare and file a final prospectus relating to the Securities in accordance with the provisions of Rule 424(b) under
the 1933 Act Regulations (“Rule 424(b)”). The final prospectus, in the form first furnished or made available to the
Underwriters for use in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus.”
For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment
or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (or any successor system)(“XXXXX”). Notwithstanding any provision herein to the contrary, the
Company shall not be required to furnish any document to the extent such document is available on XXXXX.
As used in this Agreement:
“Applicable
Time” means 5:15 P.M., New York City time, on October 26, 2021 or such other time as agreed by the Company and the Representative.
“General Disclosure
Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary
prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time and
the information included on Schedule B-1 hereto, all considered together.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of
the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission
by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether
or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because
it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or
required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Issuer General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors
(other than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by its being specified in
Schedule B-2 hereto.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
All references in this
Agreement to financial statements and schedules and other information which is “contained,” “included” or
“stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated or deemed
incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to
the execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “1934
Act”), incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary prospectus or
the Prospectus, as the case may be, at or after the execution and delivery of this Agreement.
SECTION 1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time,
the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) Registration
Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. The Securities have been
and remain eligible for registration by the Company on such shelf registration statement. The Registration Statement has become effective
under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, no order
preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes
have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if
any) from the Commission for additional information.
Each of the Registration
Statement and any post-effective amendment thereto, at the time of its effectiveness, each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, the Applicable Time, the Closing Time and any Date of Delivery complied
and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus,
the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, at the Applicable
Time, the Closing Time and any Date of Delivery complied and will comply in all material respects with the requirements of the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
The documents incorporated
or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time
they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
(ii) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof, at the Closing
Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable
Time and any Date of Delivery, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing
Prospectus, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a
material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto, as of
its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery,
included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The documents
incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus,
at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission,
as the case may be, when read together with the other information in the Registration Statement, the General Disclosure Package or the
Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto),
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representative expressly for use therein. For purposes of
this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting–
Commissions and Discounts,” the information in the second and third paragraphs under the heading “Underwriting–Price
Stabilization, Short Positions,” the information under the heading “Underwriting–Electronic Distribution” and
the information under the heading “Underwriting– Passive Market Making” in each case contained in the Prospectus (collectively,
the “Underwriter Information”).
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified. No offer that is a written communication relating to the Securities was
made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf.
(iv) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an ineligible issuer.
(v) Independent
Accountants. (i) Deloitte & Touche LLP, who certified the consolidated financial statements of the Company (the term
“consolidated financial statements” as used in this Agreement includes the related notes and schedules thereto) included in
the Registration Statement, the General Disclosure Package and the Prospectus, to the knowledge of the Company, is an independent registered
public accounting firm as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company
Accounting Oversight Board; and (ii) to the knowledge of the Company, BDO Audit Pty Ltd who certified the consolidated financial
statements of Rhino-Rack Holdings Pty Ltd included in the Registration Statement, the General Disclosure Package and the Prospectus is
an independent registered public accounting firm as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations
and the Public Company Accounting Oversight Board.
(vi) Financial
Statements; Non-GAAP Financial Measures. The financial statements of the Company included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly, in all material
respects, the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, present fairly, in all material respects, in accordance with GAAP the
information required to be stated therein. To the knowledge of the Company, the financial statements of Rhino- Rack Holdings Pty Ltd included
or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related
schedules and notes, present fairly, in all material respects, the financial position of Rhino-Rack Holdings Pty Ltd and its consolidated
subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with International Financial
Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, present fairly, in all material respects, in accordance with IFRS the information
required to be stated therein. The selected financial data and the summary financial information included in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly, in all material respects, the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements included therein. The pro forma financial statements and
the related notes thereto included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred
to therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included
or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the
1933 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, or incorporated
by reference therein, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of
the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable. The
interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus fairly, in all material respects, presents the information called for in all material respects and has been
prepared in accordance with the Commission's rules and guidelines applicable thereto.
(vii) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) except for regular quarterly
dividends on the Common Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital stock.
(viii) Good
Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(ix) Good
Standing of Subsidiaries. Each “significant subsidiary” of the Company (as such term is defined in Rule 1-02 of Regulation
S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) of the Company has been duly incorporated or
organized and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate
or similar power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed
in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares
of capital stock of any Subsidiary were issued in violation of the preemptive or similar rights of any security holder of such Subsidiary.
The only subsidiaries of the Company are (A) the Subsidiaries listed on Schedule D hereto and (B) certain other subsidiaries
which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02
of Regulation S-X.
(x) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred
to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities
or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares
of capital stock of the Company were issued in violation of the preemptive or other similar rights of any security holder of the Company.
(xi) Absence
of Ratings. Neither the Company nor any of its Subsidiaries has any securities that are rated by any “nationally recognized
statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).
(xii) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) Authorization
and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of
the Securities is not subject to the preemptive or other similar rights of any security holder of the Company. The Common Stock conforms
to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such
description conforms to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal
liability by reason of being such a holder.
(xiv) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement.
(xv) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, by-laws or
similar organizational document. Neither the Company nor any of its subsidiaries is (A) in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them
may be bound or to which any of the properties or assets of the Company or any subsidiary is subject (collectively, “Agreements
and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or
(B) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body,
regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that
would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the
Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described
therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the
aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws
or similar organizational document of the Company or any of its subsidiaries or any law, statute, rule, regulation, judgment, order, writ
or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xvi) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any
subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse
Effect.
(xvii) Absence
of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no
action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its subsidiaries, which might result in a Material Adverse Effect, or
which might materially and adversely affect their respective properties or assets or the consummation of the transactions contemplated
in this Agreement or the performance by the Company of its obligations hereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any such subsidiary is a party or of which any of their respective properties or assets is the subject
which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation
incidental to the business, would not result in a Material Adverse Effect.
(xviii) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(xix) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Nasdaq Global
Select Market, state securities laws or the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”) or
where the failure to obtain would not materially and adversely affect the consummation by the Company of the transactions contemplated
by this Agreement.
(xx) Possession
of Licenses and Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect.
The Company and its Subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxi) Title
to Property. The Company and its subsidiaries have good and marketable title to all real property owned by them and good title
to all other properties owned by them that are material to the business of 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 (A) are
described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in
the Registration Statement, the General Disclosure Package or 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.
(xxii) Possession
of Intellectual Property. 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, and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property
or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company
or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding)
or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
(xxiii) Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or
in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any
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) 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.
(xxiv) Accounting
Controls and Disclosure Controls. The Company and each of its subsidiaries (other than those subsidiaries acquired in connection
with the Company’s acquisition on July 1, 2021 of Rhino-Rack Holdings Pty Ltd. (collectively, the “Rhino-Rack
Subsidiaries”)) maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15
under the 1934 Act Regulations) and a system of internal accounting controls designed to provide reasonable assurances that
(A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization;
(D) 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 (E) the interactive data in eXtensible Business Reporting Language incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called
for in all material respects and is prepared in accordance with the Commission's rules and guidelines applicable thereto.
Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (2) other than as a result of the Company’s acquisition
on July 1, 2021 of the Rhino-Rack Subsidiaries, no change in the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting. The Company and each of its consolidated subsidiaries (other than the Rhino-Rack Subsidiaries) maintain an effective
system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations)
that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under
the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxv) Compliance
with the 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 in all material respects with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(xxvi) Payment
of Taxes. Subject to any permitted extensions, all United States federal income tax returns of the Company and its subsidiaries required
by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid,
except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided, except
where the failure to do so would not be expected to have a Material Adverse Effect. The United States federal income tax returns of the
Company through the fiscal year ended December 31, 2020 have been settled and no assessment in connection therewith has been made
against the Company. The Company and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant
to applicable foreign, state, local or other law except insofar as the failure to file such returns would not result in a Material Adverse
Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company and its subsidiaries,
except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company.
The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined,
except to the extent of any inadequacy that would not result in a Material Adverse Effect.
(xxvii) Insurance.
The Company and its subsidiaries carry or are entitled to the benefits of insurance, with insurers believed to be financially sound
and reputable, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and effect. The Company has no reason to believe that it or any of
its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to
obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Effect. Neither of the Company nor any of its subsidiaries has been denied any
insurance coverage which it has sought or for which it has applied.
(xxviii) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be
required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxix) Absence
of Manipulation. Neither the Company nor any of its subsidiaries or, to the knowledge of the Company, any affiliate of the Company
has taken, nor will the Company, any subsidiary or any affiliate take, directly or indirectly, any action which is designed, or would
be reasonably expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(xxx) Foreign
Corrupt Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA and the Company and, to the knowledge of the Company, its affiliates 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.
(xxxi) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the applicable rules and regulations thereunder and any applicable 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 with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxxii) OFAC.
None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or representative of the Company or any of its subsidiaries is an individual or entity (“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, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority
(collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the
subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend,
contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any
activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of
Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the
transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxxiii) Lending
Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company
(i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter and (ii) does
not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
(xxxiv) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package
or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate
and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xxxv) Cybersecurity.
(A) There has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company
or its subsidiaries information technology and computer systems, networks, hardware, software, data and databases (including the data
and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored
by the Company and its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries),
equipment or technology (collectively, “IT Systems and Data”) that would reasonably be expected to result in a Material
Adverse Effect: (B) neither the Company nor its subsidiaries have been notified of, and each of them have no knowledge of any event
or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT
Systems and Data, except as would not reasonably be expected to result in a Material Adverse Effect and (C) the Company and its subsidiaries
have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous
operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required
by applicable regulatory standards. The Company and its subsidiaries are presently in 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 Data and to the protection of such IT Systems
and Data from unauthorized use, access, misappropriation or modification.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its Subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby as of the date or dates indicated in such certificate.
SECTION 2. Sale and Delivery
to Underwriters; Closing.
(a) Initial
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth in Schedule A, that number of Initial Securities
opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters
as the Representative in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) Option
Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional
412,500 shares of Common Stock at the price per share set forth in Schedule A, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted may
be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice by the
Representative to the Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a “Date of
Delivery”) shall be determined by the Representative, but shall not be later than seven full business days after the exercise of
said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Securities,
each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject, in each case, to such adjustments as the Representative in its sole discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment.
Payment of the purchase price for, and delivery of certificates or security entitlements for, the Initial Securities shall be made at
the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as shall be agreed upon
by the Representative and the Company, at 9:00 A.M. (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New
York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Company (such
time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event
that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates
or security entitlements for, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Representative and the Company, on each Date of Delivery as specified in the notice from the Representative to the
Company.
Payment shall be made to the
Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representative
for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. BofA, individually
and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial
Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time
or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430B, and will notify the Representative promptly, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall
have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, including any document incorporated by reference therein or for additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post- effective
amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in the manner
and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as
it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the
Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the
Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would
be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Company, to
(i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure
Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the
Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly (A) give the Representative notice of such event,
(B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration
Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to
any proposed filing or use, furnish the Representative with copies of any such amendment or supplement and (C) file with the
Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to
which the Representative or counsel for the Underwriters shall object. The Company will furnish to the Underwriters such number of
copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representative notice
of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will
give the Representative notice of its intention to make any such filing from the Applicable Time to the Closing Time and will
furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case
may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably
object.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of
all consents and certificates of experts, and will also deliver to the Representative, without charge, a conformed copy of the Registration
Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for
the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Blue
Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative may designate
and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that
the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(f) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration
Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing.
The Company will use its best efforts to effect and maintain the listing of the Securities on the Nasdaq Global Select Market.
(i) Restriction
on Sale of Securities. During a period of 90 days from the date of the Prospectus, and subject to certain agreed upon
exceptions, the Company will not, without the prior written consent of the Representative, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the
Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement,
the General Disclosure Package and the Prospectus, (D) any shares of Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the
Prospectus, (E) shares of Common Stock issued pursuant to the Company’s registration statement on Form S-4 (File
No.: 333-254107) in connection with an acquisition in an aggregate amount not to exceed, on a fully diluted basis, 5% of the
Company’s outstanding shares of Common Stock after giving effect to the issuance or sale of the Securities; provided, however,
that any recipient of such shares so issued in connection with any such acquisition transaction, if such shares are to be issued
during the 90-day period after the date of the Prospectus, shall agree to be subject to the foregoing lockup restrictions for the
remainder of the 90-day restricted period; (F) the filing of one or more registration statements on Form S-8 providing for
resales of any shares of Common Stock registered thereunder, and/or (G) the filing of a registration statement on Form S-3
with respect to shares of Common Stock owned by certain shareholders, officers or directors of the Company. For the avoidance of
doubt, the filing of any registration statement pursuant to clause (F) or (G) above shall be without prejudice to the
transfer limitations applicable to any persons named therein as sellers under any lock-up agreements to which they may be subject,
which shall continue in full force and effect in accordance with the terms thereof.
(j) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by
Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report
the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.
(k) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it will not
make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the
Company under Rule 433; provided that the Representative will be deemed to have consented to the Issuer Free Writing Prospectuses
listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that
has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free writing
prospectus consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,” as defined
in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including
timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative
and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally
filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary
prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery
of the certificates or security entitlements for the Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements
of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto,
(vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including
without limitation, documented out-of-pocket expenses associated with the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show presentations, reasonable travel and lodging expenses of the Representative
and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered in connection with
the road show, (viii) the fees and expenses incurred in connection with the listing of the Securities on the Nasdaq Global Select
Market and (x) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal
or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by
a breach of the representation contained in the third sentence of Section 1(a)(ii).
(b) Termination
of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section 5, Section 9(a)(i) or
(iii) or Section 10 hereof, the Company shall reimburse the Underwriters for all of their documented out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions
of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained herein or in certificates of any officer of the Company or any of its Subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement has become effective and, at the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing
or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have
been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if
any) from the Commission for additional information.
(b) Opinion
of Counsel for Company. At the Closing Time, the Representative shall have received the favorable opinion, dated the Closing
Time, of Xxxx Xxxxxxx, P.C., counsel for the Company, with respect to matters governed by the law of State of New York, the General
Corporation Law of the State of Delaware, and the federal securities laws of the United States, and of such other local counsel as
may be necessary with respect to the laws of other jurisdictions, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the Underwriters may reasonably request. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of
officers and other representatives of the Company and its Subsidiaries and certificates of public officials.
(c) Tax
Opinion of Counsel for Company. At the Closing Time, the Representative shall have received the favorable opinion, dated the Closing
Time, of K&L Gates LLP, tax counsel for the Company, with respect to matters governed by federal tax laws of the United States, in
form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Underwriters
may reasonably request. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of officers and other representatives of the Company and its Subsidiaries and certificates of public
officials.
(d) Opinion
of Counsel for Underwriters. At the Closing Time, the Representative shall have received the favorable opinion, dated the Closing
Time, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters with respect to such matters as the Representative may require. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law
of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Representative.
Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers and other representatives of the Company and its Subsidiaries and certificates of public officials.
(e) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the
Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer of the Company, dated the
Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties
of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at
or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act
has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings
for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(f) Deloitte &
Touche’s Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from Deloitte &
Touche LLP, as auditors of the Company, a letter, dated such date, in form and substance satisfactory to the Representative, together
with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial
information of the Company contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) BDO’s
Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from BDO Audit Pty Ltd,
as auditors of Rhino-Rack Holdings Pty Ltd, a letter, dated such date, in form and substance satisfactory to the Representative,
together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information of Rhino-Rack Holdings Pty Ltd contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(h) Bring-down
Comfort Letters. At the Closing Time, the Representative shall have received from each of Deloitte & Touche, LLP and BDO
Audit Pty Ltd a letter, in each case, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters
furnished pursuant to subsection (e) or (f) of this Section, as applicable, except that the specified date referred to shall
be a date not more than three business days prior to the Closing Time.
(i) Listing
of Securities. At the Closing Time, the Company has filed a listing of additional shares notification with the Nasdaq Global Select
Market with respect to the Securities and received notification from the Nasdaq Global Select Market that such filing has been successfully
submitted.
(j) Lock-up
Agreements. At the date of this Agreement, the Representative shall have received an agreement substantially in the form of Exhibit C
hereto signed by the persons listed on Schedule C hereto, subject to certain agreed upon exceptions.
(k) Chief
Financial Officer’s Certificate. At the date of this agreement and at the Closing Time, the Representative shall have received
a certificate of the Chief Financial Officer of the Company substantially in the form of Exhibit D hereof.
(l) Conditions
to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements
in any certificates furnished by the Company and any of its Subsidiaries hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representative shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion
of Counsel for Company. If requested by the Representative, the favorable opinion of Xxxx Xxxxxxx, P.C., counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion
of Counsel for Underwriters. If requested by the Representative, the favorable opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(d) hereof.
(iv) Bring-down
Comfort Letters. If requested by the Representative, a letter from Deloitte & Touche LLP and BDO Audit Pty Ltd, in each case,
in form and substance satisfactory to the Representative and dated such Date of Delivery, substantially in the same form and substance
as the letters furnished to the Representative pursuant to Section 5(f) or Section 5(g) hereof, as applicable, except
that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three business
days prior to such Date of Delivery.
(v) Chief
Financial Officer’s Certificate. If requested by the Representative, a certificate of the Chief Financial Officer of the Company,
dated such Date of Delivery, substantially in the form of Exhibit D hereof.
(vi) Tax
Opinion of Counsel for Company. If requested by the Representative, the favorable opinion of K&L Gates LLP, tax counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(m) Additional
Documents. At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(n) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing
Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representative
by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall
be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 14, 15,
16 and 17 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under
the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be
a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material
fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto) or (B) in any materials or information provided to investors by, or with the approval of,
the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow
or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission
in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the reasonable fees and documented out-of-pocket disbursements of counsel
chosen by the Representative), reasonably incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the
Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B,
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
the Underwriter Information.
(b) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part
thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Underwriter Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the
Representative, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on
the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received
by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement
or omission or alleged omission.
Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by
such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
For purposes of this Section 7,
each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company or any of its Subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable
or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Global Select Market,
or (iv) if trading generally on the NYSE MKT or the New York Stock Exchange or in the Nasdaq Global Select Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred
in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear
systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive such termination
and remain in full force and effect.
SECTION 10. Default
by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”),
the Representative shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the Representative shall not have completed such arrangements
within such 24-hour period, then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell,
the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to
this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default
which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which
does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the (i) Representative or (ii) the Company shall have the right to postpone Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration
Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representative, c/o BofA Securities Inc.
at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Syndicate Department (email: xx.xxx_xxxxxxxxx_xxxxxxxx@xxxx.xxx), with a copy
to ECM Legal (email: xx.xxx_xxxxx@xxxx.xxx). Notices to the Company shall be directed to it at Clarus Corporation, 0000 Xxxx 0000 Xxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000, attention of Xxxxx Xxxxxx.
SECTION 12. No Advisory
or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions,
is an arm’s- length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand,
and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (b) in connection
with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and
is not the agent or fiduciary of the Company, or any of its subsidiaries, or its respective stockholders, creditors, employees or any
other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company, any of its subsidiaries on other matters) and no Underwriter has any obligation to
the Company with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory, investment or tax advice with
respect to the offering of the Securities and the Company has consulted its own legal, accounting, financial, regulatory and tax advisors
to the extent it deemed appropriate, and (f) none of the activities of the Underwriters in connection with the transactions contemplated
herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriters with respect to any entity or
natural person.
SECTION 13. Recognition of the U.S. Special Resolution
Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Section 13, a
“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.
SECTION 14. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters,
the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and
their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and their respective successors, and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial
by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16. 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 WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent
to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America
located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City
and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related
Judgment”), as to which such jurisdiction is non- exclusive) of such courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying
of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead
or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient
forum.
SECTION 18. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts
and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same Agreement. 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.
SECTION 20. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
|
Very truly yours, |
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CLARUS CORPORATION |
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|
|
By |
/s/ Xxxxx X. Xxxxxx |
|
Title: Executive Vice President and Chief Financial Officer |
CONFIRMED AND ACCEPTED, |
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as of the date first above written: |
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BOFA SECURITIES, INC. |
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By: |
/s/ Xxxxxx Xxxx |
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Authorized Signatory |
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For itself and as Representative of the other Underwriters named in Schedule A hereto.
SCHEDULE A
The initial public offering price per share for
the Securities shall be $27.
The purchase price per share for the Securities
to be paid by the several Underwriters shall be $25.38, being an amount equal to the initial public offering price set forth above less
$1.62 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Name of Underwriter | |
Number
of
Initial Securities | |
BofA Securities, Inc. | |
| 1,695,833 | |
Xxxxxx, Xxxxxxxx & Company, Incorporated | |
| 468,519 | |
Xxxxxxx Xxxxx & Associates, Inc. | |
| 351,389 | |
Xxxx Capital Partners, LLC | |
| 234,259 | |
Total | |
| 2,750,000 | |
SCHEDULE B -1
Pricing Terms
| 1. | The Company is selling 2,750,000 shares of Common Stock. |
| 2. | The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 412,500 shares of
Common Stock. |
| 3. | The initial public offering price per share for the Securities shall be $27. |
SCHEDULE B-2
Free Writing Prospectuses
None.
SCHEDULE C
List of Persons and Entities Subject to Lock-up
Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx X. House
Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxxxx
Xxxxx Xxxxxx
SCHEDULE D
List of Subsidiaries
Everest/Sapphire Acquisition, LLC
Black Diamond Equipment, Ltd.
Black Diamond Retail, Inc.
Black Diamond Retail – Alaska, LLC
Black Diamond Retail –
Colorado, LLC
Black Diamond Retail – Montana, LLC
Black Diamond Retail – Oregon, LLC
Black Diamond Retail – Vermont,
LLC
Black Diamond Retail – Wyoming, LLC
Black Diamond Equipment Europe GmbH
Black Diamond Equipment Retail GmbH
BD European Holdings, LLC
Black Diamond Austria GmbH
PIEPS GmbH
SKINourishment, LLC
Sierra Bullets, L.L.C.
Xxxxxx Bullets – Xxxx, LLC
Oscar Aluminium Holdings, Inc.
Oscar Aluminium Holdings Pty Ltd
Oscar Aluminium Pty Ltd
Rhino-Rack Holdings Pty Ltd
Rhino-Rack Australia
Pty Ltd
Rhino-Rack USA, LLC
Roof Rack City Pty Ltd
Rhino-Rack New Zealand Ltd
Rhinorack Canada
Limited
Xxxxxxx Aluminium Pty Ltd