Exhibit 1.1
Enviva Inc.
4,300,000 Shares of Common Stock
par value $0.001 per share
UNDERWRITING AGREEMENT
January 19, 2022
Goldman Sachs & Co.
LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
As Representatives of the several
Underwriters named in Schedule
I attached hereto,
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Enviva Inc., a Delaware corporation
(the “Company”), proposes to sell 4,300,000 shares (the “Firm Stock”) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”). In addition, the Company proposes to grant to
the underwriters (the “Underwriters”) named in Schedule I attached to this agreement (this “Agreement”)
an option to purchase up to 645,000 additional shares of Common Stock on the terms set forth in Section 2 (the “Option
Stock”). The Firm Stock and the Option Stock, if purchased, are hereinafter collectively called the “Stock”.
This Agreement is to confirm the agreement concerning the purchase of the Stock from the Company by the Underwriters. Certain terms used
in this Agreement are defined below in Section 1(a) hereof.
1. Representations,
Warranties and Agreements of the Company. The Company hereby represents, warrants and agrees that:
(a) A
registration statement on Form S-3 (File No. 333- 262240) relating to the Stock has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and
regulations of the Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with
the Commission under the Securities Act; and (iii) become effective under the Securities Act. Copies of such registration statement
and any amendment thereto have been delivered by the Company to you as the representatives (the “Representatives”)
of the Underwriters. As used in this Agreement:
(i) “Applicable
Time” means 8:05 p.m. (New York City time) on January 19, 2022;
(ii) “Effective
Date” means the date and time as of which such registration statement, or the most recent post-effective amendment thereto,
if any, became, or is deemed to have become, effective by the Commission in accordance with the rules and regulations under the Securities
Act;
(iii) “Issuer
Free Writing Prospectus” means each “issuer free writing prospectus” (as defined in Rule 433 under the
Securities Act) relating to the Stock;
(iv) “Preliminary
Prospectus” means any preliminary prospectus relating to the Stock included in such registration statement or filed with
the Commission pursuant to Rule 424(b) under the Securities Act;
(v) “Pricing
Disclosure Package” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with the information
included in Schedule II hereto and each Issuer Free Writing Prospectus filed or used by the Company on or before the Applicable Time,
other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities
Act;
(vi) “Prospectus”
means the final prospectus relating to the Stock, including any prospectus supplement thereto related to the Stock, as filed with the
Commission pursuant to Rule 424(b) under the Securities Act; and
(vii) “Registration
Statement” means such registration statement, as amended as of the Effective Date, including any Preliminary Prospectus
or the Prospectus, all exhibits to such registration statement and including the information deemed by virtue of Rule 430B under
the Securities Act to be part of such registration statement as of the Effective Date.
Any reference to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3 under
the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the “most
recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement
or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof. Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and before the date of such amendment or supplement and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to
include any document filed with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act after the Effective
Date and before the date of such amendment that is incorporated by reference in the Registration Statement. The Commission has not issued
any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has been instituted or threatened by the Commission. The Commission has not
notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto.
(b) Since
the time of initial filing of the Registration Statement, the Company has been, and continues to be, a “well-known seasoned issuer”
(as defined in Rule 405) eligible to use Form S-3 for the offering of the Stock. The Company was not an “ineligible issuer”
(as defined in Rule 405 under the Securities Act) at any such time or date. The Registration Statement was filed not earlier than
the date that is three years prior to the applicable Closing Date.
(c) The
Registration Statement conformed and will conform in all material respects on the Effective Date and on the applicable Delivery Date,
and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements
of the Securities Act and the rules and regulations thereunder. The most recent Preliminary Prospectus conformed, and the Prospectus
will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and on
the applicable Delivery Date to the requirements of the Securities Act and the rules and regulations thereunder. The documents incorporated
by reference in any Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will conform, when filed
with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation
or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion
therein, which information is specified in Section 8(e).
(e) The
Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon
and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein, which information is specified in Section 8(e).
(f) The
documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated
by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package
made in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e).
(h) Each
Issuer Free Writing Prospectus listed in Schedule III hereto, when taken together with the Pricing Disclosure Package, did not, as of
the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty
is made as to information contained in or omitted from such Issuer Free Writing Prospectus listed in Schedule III hereto in reliance upon
and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein, which information is specified in Section 8(e).
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the rules and
regulations thereunder on the date of first use, and the Company has complied with all prospectus delivery and any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act and rules and regulations thereunder. The Company
has not made any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent
of the Representatives. The Company has retained in accordance with the Securities Act and the rules and regulations thereunder all
Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act and the rules and regulations
thereunder.
(j) The
Company has been duly organized, is validly existing and in good standing as a corporation under the laws of its jurisdiction of organization
and is duly qualified to do business and in good standing as a foreign business entity in each jurisdiction in which its ownership or
lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good
standing would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement, “Material
Adverse Effect” refers to an adverse change, in or affecting the condition (financial or otherwise), results of operations,
stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries (collectively, the “Company
Entities”), taken as a whole. The Company has all corporate power and authority necessary to own or hold its properties
and to conduct the businesses in which it is engaged in all material respects.
(k) [Reserved.]
(l) The
Company has an authorized capitalization as set forth under the heading “Capitalization” in each of the most recent Preliminary
Prospectus and the Prospectus as of the date or dates set forth therein, and, when the Stock has been delivered and paid for in accordance
with this Agreement on each Closing Date, all of the Stock or other equity interests of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, conform to the description thereof contained in the most recent Preliminary Prospectus and
were issued in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of
first refusal or similar rights. All of the Company’s options, warrants and other rights to purchase or exchange any securities
for shares of the Company’s capital stock have been duly authorized and validly issued, conform to the description thereof contained
in the most recent Preliminary Prospectus and were issued in compliance with federal and state securities laws. All of the issued shares
of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and validly issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party (collectively, “Liens”), except for
Liens pursuant to the Credit Agreement, dated as of April 9, 2015 (as amended, restated, amended and restated, supplemented or otherwise
modified prior to the date hereof, the “Credit Agreement”), by, among others, the Company and the lenders party
thereto from time to time.
(m) Except
as described in the most recent Preliminary Prospectus, there are no (i) preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any equity securities of any of the Company Entities, or (ii) outstanding
options or warrants to purchase any securities of any of the Company Entities. The offering or sale of the Stock as contemplated by this
Agreement will not give rise to any rights for or relating to the registration of any Stock or other securities of the Company.
(n) The
Company has full right, power and authority to execute this Agreement, deliver this Agreement and to perform its obligations hereunder.
The Company has all requisite corporate power and authority to issue, sell and deliver the Stock, in accordance with and upon the terms
and conditions set forth in this Agreement and the most recent Preliminary Prospectus. All action required to be taken by the Company
for the due and proper authorization, execution and delivery of this Agreement and the issuance, sale and delivery of the Stock to the
Underwriters has been duly and validly taken.
(o) This
Agreement has been duly authorized, executed and delivered by the Company.
(p) The
shares of Stock have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement against payment
therefor as provided herein, will be validly issued, fully paid and non-assessable, will conform to the descriptions thereof contained
in the most recent Preliminary Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory
and contractual preemptive rights, rights of first refusal and similar rights.
(q) The
issuance and sale of the Stock by the Company and the execution, delivery and performance of this Agreement by the Company will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, impose any Lien upon any property or assets of any of the
Company Entities, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement
or instrument to which any of the Company Entities is a party or by which any of the Company Entities is bound or to which any of the
property or assets of any of the Company Entities is subject; (ii) result in any violation of the provisions of the organizational
documents of any of the Company Entities (collectively, the “Organizational Documents”); (iii) result in
any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company Entities or any of their respective properties or assets in a proceeding to which any of them is a party
or their respective properties or assets are bound; or (iv) in the aggregate, reasonably be expected to have a material adverse effect
on the performance of this Agreement or the consummation of the transactions contemplated hereby, except, with respect to clauses (i) and
(iii), conflicts or violations that would not reasonably be expected to have a Material Adverse Effect.
(r) No
consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental agency or body
having jurisdiction over the Company or any of its properties or assets is required for (i) the issuance and sale of the Stock by
the Company, (ii) the execution, delivery and performance of this Agreement by the Company or (iii) the consummation of the
transactions contemplated hereby, except (A) for the registration of the Stock under the Securities Act and such consents, approvals,
authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, and applicable securities
laws of any U.S. state or Canadian province and/or the bylaws and rules of the Financial Industry Regulatory Authority (the “FINRA”)
in connection with the purchase and sale of the Stock by the Underwriters, (B) for such consents, approvals, authorizations, orders,
filings, registrations or qualifications that have been obtained or made, (C) for any such consents, approvals, authorizations, orders,
filings, registrations or qualifications the absence or omission of which would not reasonably be expected to materially impair the ability
of Company to issue the Stock or any other transactions provided for in this Agreement and (D) as described in the most recent Preliminary
Prospectus.
(s) (i) The
historical financial statements (including the related notes and supporting schedules) included or incorporated by reference in the most
recent Preliminary Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities
Act and present fairly in all material respects the financial position of the Company Entities as of the dates indicated and the results
of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
covered thereby, except to the extent disclosed therein. The selected financial data and the summary financial information included in
the most recent Preliminary Prospectus present fairly the information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included therein. All disclosures contained or incorporated by reference in the most recent Preliminary
Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable.
(ii) The interactive data
in eXtensible Business Reporting Language included or incorporated by reference in the Pricing Disclosure Package and the Prospectus fairly
present the information called for in all material respects and are prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
(iii) The pro forma financial
statements included or incorporated by reference in the most recent Preliminary Prospectus include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma financial statements included or incorporated by reference in the most
recent Preliminary Prospectus. The pro forma financial statements included or incorporated by reference in the most recent Preliminary
Prospectus comply as to form in all material respects with the applicable requirements of Regulation S-X under the Securities Act.
(t) No
forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included
or incorporated by reference in any of the Registration Statement, the Pricing Disclosure Package, the Prospectus or any “road show”
(as defined in Rule 433 under the Securities Act) has been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(u) Ernst &
Young LLP, who have certified certain financial statements of the Company Entities, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and who have delivered the initial letters referred to in Section 7(g) hereof,
are independent public accountants as required by the Securities Act and the rules and regulations thereunder; and KPMG LLP, whose
report appears in the most recent Preliminary Prospectus or is incorporated by reference therein, were independent public accountants
as required by the Securities Act and the rules and regulations thereunder during the periods covered by the financial statements
on which they reported contained or incorporated by reference in the most recent Preliminary Prospectus. Ernst & Young LLP, who
have certified certain financial statements of Enviva Holdings, LP and its subsidiaries, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and who have delivered the initial letters referred to in Section 7(g) hereof,
are independent public accountants as required by the Securities Act and the rules and regulations thereunder.
(v) The
Company Entities maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
GAAP. The Company Entities maintain internal accounting controls sufficient to provide reasonable assurances regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including, but not limited
to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s
financial statements in conformity with GAAP and to maintain accountability for its assets, (iii) access to the Company’s assets
is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for
the Company’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. As of the date of the most recent balance sheet of the Company and its consolidated subsidiaries reviewed or audited by Ernst &
Young LLP, there were no material weaknesses in the Company Entities’ internal controls.
(w) (i) The
Company Entities maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act),
(ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Company
Entities in the reports they file or submit under the Exchange Act is accumulated and communicated to management of the Company Entities,
including their respective principal executive officers and principal financial officers, as appropriate, to allow timely decisions regarding
required disclosure to be made, and (iii) to the extent required by Rule 13a-15 of the Exchange Act, such disclosure controls
and procedures are effective in all material respects to perform the functions for which they were established.
(x) Since
the date of the most recent balance sheet of the Company and its consolidated subsidiaries reviewed or audited by Ernst & Young,
LLP, (i) the Company Entities have not been advised of or become aware of (A) any significant deficiencies or any material weaknesses
in the design or operation of internal controls that are reasonably likely to adversely affect the ability of the Company Entities to
record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other
employees who have a significant role in the internal controls of the Company Entities; and (ii) there have been no significant changes
in internal controls or in other factors that are reasonably likely to materially affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses.
(y) There
is not and has not been any failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith,
in each case, that are effective and applicable to the Company.
(z) Except
as described in the most recent Preliminary Prospectus, since the date of the latest audited financial statements included or incorporated
by reference in the most recent Preliminary Prospectus, (i) the Company Entities have not sustained any material loss or interference
with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, (ii) the Company Entities have not declared, paid or made any dividend or distribution of
any kind on the security interests of any Company Entity, (iii) the Company Entities have not incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (iv) the
Company Entities have not entered into any material transaction not in the ordinary course of business, and (v) there has not been
any material change in the corporate, partnership or limited liability company interests, as applicable, or long-term debt of the Company
Entities, or any development involving a Material Adverse Effect.
(aa) The
Company Entities have good and marketable title in fee simple to all real property and good and marketable title to all personal property
owned by them, in each case free and clear of all Liens, except such Liens (i) as are described in the most recent Preliminary Prospectus,
(ii) as are permitted by the Credit Agreement, or (iii) that do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company Entities. All assets held under lease by
the Company Entities are held by them under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere
with the use made and proposed to be made of such assets by the Company Entities as described in the most recent Preliminary Prospectus.
(bb) The
Company Entities have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental
or regulatory authorities (“Permits”) as are necessary under applicable law to own their properties and conduct
their businesses in the manner described in the most recent Preliminary Prospectus, except for any of the foregoing that would not, in
the aggregate, reasonably be expected to have a Material Adverse Effect or except as described in the most recent Preliminary Prospectus.
The Company Entities have fulfilled and performed all of their obligations with respect to the Permits, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights
of the holder of any such Permits, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect
or except as described in the most recent Preliminary Prospectus. None of the Company Entities has received notice of any revocation or
modification of any such Permits or has any reason to believe that any such Permits will not be renewed in the ordinary course, except
those that would not reasonably be expected to have a Material Adverse Effect.
(cc) The
Company Entities own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses, know-how, software, systems and technology (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct
of their respective businesses and have no reason to believe that the conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such rights of others, except as would not reasonably be expected to have a
Material Adverse Effect.
(dd) Except
as described in the most recent Preliminary Prospectus, there are no legal or governmental proceedings pending to which any of the Company
Entities is a party or of which any property or assets of any of the Company Entities is subject that could, in the aggregate, reasonably
be expected to have a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of the transactions contemplated hereby; and to the Company’s knowledge, no
such proceedings are threatened by governmental authorities or others.
(ee) There
are no contracts or other documents required to be described in the Registration Statement or the most recent Preliminary Prospectus or
filed as exhibits to the Registration Statement that are not described and filed as required. The statements made in the most recent Preliminary
Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed, constitute
accurate summaries of the terms of such contracts and documents in all material respects.
(ff) The
statements made in or incorporated by reference in the most recent Preliminary Prospectus under the captions “Business—Governmental
Regulations,” “Certain Relationships and Related Transactions and Director Independence,” “Description of Enviva
Inc.’s Capital Stock” and “Material U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as they
purport to constitute summaries of the terms of certain statutes, rules or regulations, legal or governmental proceedings or contracts
and other documents, constitute accurate summaries of the terms of such statutes, rules and regulations, legal and governmental proceedings
and contracts and other documents referred to therein in all material respects.
(gg) The
Company Entities carry, or are covered by, insurance from reputable insurers in such amounts and covering such risks as is reasonably
adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies
engaged in similar businesses in similar industries. All policies of insurance of the Company Entities are in full force and effect; the
Company Entities are in compliance with the terms of such policies in all material respects; and none of the Company Entities has received
notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made
in order to continue such insurance; there are no material claims by the Company Entities under any such policy or instrument as to which
any insurance company is denying liability or defending under a reservation of rights clause; and the Company Entities have no reason
to believe that they will not be able to renew their existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue their business at a cost that could not reasonably be expected to have
a Material Adverse Effect.
(hh) No
relationship, direct or indirect, exists between or among the Company Entities, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company Entities, on the other hand, that is required to be described in the most recent Preliminary Prospectus
which is not so described.
(ii) No
labor disturbance by or dispute with the employees of the Company Entities exists or, to the knowledge of the Company, is imminent that
could reasonably be expected to have a Material Adverse Effect.
(jj) None
of the Company Entities are (i) in violation of their charter or by-laws or similar organizational documents, (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance
of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which any of the Company Entities are a party or by which any of the Company Entities are bound or to which any of property,
right or asset of any of the Company Entities is subject, or (iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except in the case of clauses (ii) and (iii) above,
for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(kk) Except
as described in the most recent Preliminary Prospectus, the Company Entities (i) are, and at all times prior hereto were, in compliance
with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any governmental authority,
including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating to pollution,
the protection of human health or safety, the environment, or natural resources, or the use, handling, storage, manufacturing, transportation,
treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with
all permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses, and (ii) have
not received notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws, or of any actual or potential
liability for or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, except in the case of clause (i) or (ii) where such non-compliance, failure to receive the required permits
or failure to comply with the terms and conditions of such permits, violation, liability, or other obligation would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as described in the most recent Preliminary Prospectus, (x) there
are no proceedings that are pending, or known to be contemplated, against the Company Entities under Environmental Laws in which a governmental
authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $300,000 or
more will be imposed, (y) the Company is not aware of any issues regarding compliance with Environmental Laws, including any pending
or proposed Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances
or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the capital expenditures, earnings
or competitive position of the Company Entities, and (z) none of the Company Entities anticipates material capital expenditures relating
to Environmental Laws.
(ll) Except
as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company Entities have filed all
federal, state and local and non-U.S. tax returns required to be filed through the date hereof, subject to permitted extensions, and have
paid all taxes due, and (ii) no tax deficiency has been determined adversely to the Company Entities, nor does the Company have any
knowledge of any tax deficiencies that have been, or could reasonably be expected to be asserted against any of the Company Entities.
(mm) (i) Each
“employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as
amended (“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code
of 1986, as amended (the “Code”)) would have any liability (each a “Plan”) has been
maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA
and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with
respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of
ERISA) has occurred or is reasonably expected to occur, (B) no “accumulated funding deficiency” (within the meaning of
Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C) the
fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan), and (D) neither the Company nor any member of its Controlled Group has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty
Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the
meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(nn) The
statistical and market-related data included in the most recent Preliminary Prospectus and “road show” (as defined in Rule 433
under the Securities Act) are based on or derived from sources that the Company believes to be reliable in all material respects.
(oo) None
of the Company Entities is, and as of the applicable Delivery Date and, after giving effect to the offer and sale of the Stock by the
Company and the application of the proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, none of them will be, (i) an “investment company” or a company “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder, or (ii) a “business development
company” (as defined in Section 2(a)(48) of the Investment Company Act).
(pp) Except
as described in the most recent Preliminary Prospectus, there are no contracts, agreements or understandings between any Company Entity
and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(qq) None
of the Company Entities is a party to any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against any of them or the Underwriters for a brokerage commission, finder’s fee or like payment in connection
with the offering and sale of the Stock.
(rr) Neither
the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act), that
is or will be integrated with the Stock contemplated by this Agreement pursuant to the Securities Act.
(ss) The
Company has not (i) taken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company
or (ii) sold, bid for, purchased or paid any person (other than as contemplated by this Agreement) any compensation for soliciting
purchases of the Stock.
(tt) The
Company Entities have not distributed and, prior to the later to occur of any Delivery Date and completion of the distribution of the
Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than any Preliminary Prospectus,
the Prospectus, and any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Sections 1(i) and
6(a)(vi).
(uu) None
of the Company Entities, nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company Entities, has (i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or
any other applicable anti-bribery or anti-corruption law; or (iv) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment. The Company Entities have instituted, maintain and enforce, policies and procedures designed to promote and ensure
compliance with all applicable anti-bribery and anti-corruption laws.
(vv) The
operations of the Company Entities are and have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money
laundering statutes of all jurisdictions where any of the Company Entities conduct business, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company Entities with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(ww) None
of the Company Entities, their directors, officers, or agents, nor, to the knowledge of the Company, any agent or affiliate of the Company
Entities is currently the subject of any U.S. sanctions regulations administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”) or the U.S. Department of State, the United Nations Security Council (“UNSC”),
the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), including, without limitation, designation on OFAC’s Specially Designated Nationals and
Blocked Person List (an “SDN”) or any person majority owned by an SDN, or where relevant under applicable Sanctions,
controlled by a Sanctions target, nor are any of the Company Entities located, organized or resident in a country or territory that is
the subject or target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine
(each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to
fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or
target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other
manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial
purchaser, advisor, investor or otherwise) of Sanctions. For the past five years, the Company Entities have not knowingly engaged in,
and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or
was the subject or the target of Sanctions or with any Sanctioned Country.
(xx) The
Company Entities’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications,
and databases (collectively, “IT Systems”) are adequate for, and operate and perform as necessary for the operation
of the business of the Company Entities as currently conducted, except as would not, individually or in the aggregate, have a Material
Adverse Effect. The Company Entities conduct industry-standard scans of its IT Systems to detect and address material bugs, errors, defects,
Trojan horses, time bombs, malware and other corruptants. The Company Entities have implemented and maintained commercially reasonable
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity and security
of all IT Systems and sensitive data (including all personal, personally identifiable, confidential or regulated data (“Sensitive
Data”)) used in connection with their businesses, and there have been no known breaches, violations, outages or unauthorized
uses of or accesses to same, except as would not, individually or in the aggregate, have a Material Adverse Effect, and the Company Entities
have not had a duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company
Entities are presently in material compliance with all applicable laws or statutes and all judgments, orders, and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations applicable to the privacy and security
of its IT Systems and Sensitive Data and to the protection of such IT Systems and Sensitive Data from unauthorized use, access, misappropriation
or modification.
(yy) The
Company is not a “legal entity customer” for the purposes of 31 CFR § 1010.230(e).
Any certificate signed by any
officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock
shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase
of the Stock by the Underwriters. On the basis of the representations, warranties and covenants contained in, and subject to the terms
and conditions of, this Agreement, the Company agrees to sell 4,300,000 shares of the Firm Stock to the several Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase the number of shares of the Firm Stock set forth opposite that
Underwriter’s name in Schedule I hereto. The respective purchase obligations of the Underwriters with respect to the Firm Stock
shall be rounded among the Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants
to the Underwriters an option to purchase up to 645,000 additional shares of Option Stock. Such option is exercisable in the event that
the Underwriters sell more Common Stock than the number of shares of Firm Stock in the offering and as set forth in Section 4 hereof.
Each Underwriter agrees, severally and not jointly, to purchase the number of shares of Option Stock (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same proportion to the total number of shares of Option Stock to
be sold on such Delivery Date as the number of shares of Firm Stock set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of shares of Firm Stock.
The purchase price payable by
the Underwriters for both the Firm Stock and any Option Stock is $67.55 per share, less, in the case of the Option Stock, an amount per
share equal to any dividends or distributions declared by the Company on its Common Stock and payable on the Firm Stock but not payable
on such Option Stock.
The Company is not obligated
to deliver any of the Firm Stock or Option Stock to be delivered on the applicable Delivery Date, except upon payment for all such Stock
to be purchased on such Delivery Date as provided herein.
3. Offering
of Stock by the Underwriters. Upon authorization by the Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions to be set forth in the Prospectus.
4. Delivery
of and Payment for the Stock. Delivery of and payment for the Firm Stock shall be made at 10:00 A.M., New York City time, on
the second full business day following the date of this Agreement or at such other date or place as shall be determined by agreement between
the Representatives and the Company. This date and time are sometimes referred to as the “Initial Delivery Date”.
Delivery of the Firm Stock shall be made to the Representatives for the account of each Underwriter against payment by the several Underwriters
through the Representatives and of the respective aggregate purchase price of the Firm Stock being sold by the Company of the purchase
price by wire transfer in immediately available funds to the accounts specified by the Company. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The
Company shall deliver the Firm Stock through the facilities of The Depository Trust Company (“DTC”) unless the
Representatives shall otherwise instruct.
The option granted in Section 2
will expire 30 days after the date of this Agreement and may be exercised in whole or from time to time in part by written notice being
given to the Company by the Representatives; provided that if such date falls on a day that is not a business day, the option granted
in Section 2 will expire on the next succeeding business day. Such notice shall set forth the aggregate number of shares of Option
Stock as to which the option is being exercised, the names in which the shares of Option Stock are to be registered, the denominations
in which the shares of Option Stock are to be issued and the date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not be earlier than the Initial Delivery Date nor earlier
than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. Each date and time the shares of Option Stock are delivered is sometimes referred
to as an “Option Stock Delivery Date”, and the Initial Delivery Date and any Option Stock Delivery Date are
sometimes each referred to as a “Delivery Date”.
Delivery of the Option Stock
by the Company and payment for the Option Stock by the several Underwriters through the Representatives shall be made at 10:00 A.M.,
New York City time, on the date specified in the corresponding notice described in the preceding paragraph or at such other date or place
as shall be determined by agreement between the Representatives and the Company. On each Option Stock Delivery Date, the Company shall
deliver or cause to be delivered the Option Stock to the Representatives and of the aggregate purchase price of the Option Stock being
sold by the Company to or upon the order of the Company of the purchase price by wire transfer in immediately available funds to the account
specified by the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. The Company shall deliver the Option Stock through the facilities of DTC unless
the Representatives shall otherwise instruct.
5. Further
Agreements of the Company and the Underwriters. The Company agrees:
(i) To
prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery
of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery
Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment
or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the
Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose,
or any notice from the Commission objecting to the use of the form of Registration Statement or any post-effective amendment thereto or
of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending
the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly their best efforts
to obtain its withdrawal.
(ii) To
furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(iii) To
deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed
copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each
Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and,
if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or
any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect
such compliance.
(iv) To
file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment
of the Company or the Representatives, be required by the Securities Act or requested by the Commission.
(v) Prior
to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus, any document incorporated by
reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing.
(vi) Not
to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the
Representatives.
(vii) To
comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus.
If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended
or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus
or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend
or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request
of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As
soon as practicable after the Effective Date (it being understood that the Company shall have until at least 405 days or, if the fourth
quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 440
days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders
and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company,
Rule 158).
(ix) Promptly
from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the
securities or Blue Sky laws of Canada and such other jurisdictions as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Stock; provided that (i) no sales shall be made by the Underwriters without the Company’s prior consent and (ii)
the Company shall not be required to (a) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be
required to so qualify, (b) file a general consent to service of process in any such jurisdiction, or (c) subject itself to
taxation in any jurisdiction in which it would not otherwise be subject, except in the case of clauses (a), (b) and (c) as may
be required under the Business Corporations Act (Ontario) if the Company has consented to sales in Ontario.
(x) For
a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”),
not to, directly or indirectly, (A) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device
that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock (other than the (i) the Stock or (ii) Common Stock
issued pursuant to employee benefit plans, qualified option plans or other employee compensation plans existing on the date hereof), or
sell or grant options, rights or warrants with respect to any Common Stock or securities convertible into or exchangeable for Common Stock,
(B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic consequences
of ownership of such Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery
of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any
amendments thereto, with respect to the registration of any Common Stock or securities convertible, exercisable or exchangeable into Common
Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the
intention to do any of the foregoing, in each case without the prior written consent of Goldman Sachs & Co. LLC, Citigroup Global
Markets Inc. and J.P. Morgan Securities LLC, on behalf of the Underwriters, and to cause each officer, director and stockholder of the
Company set forth on Schedule V hereto to furnish to the Representatives, prior to the date of this Agreement, a letter or letters, substantially
in the form of Exhibit A hereto (the “Lock-Up Agreements”). The foregoing shall not apply to any dividend
reinvestments made pursuant to Article 2 of the Support Agreement, dated as of October 14, 2021, by and among the Company and
the parties thereto.
(xi) To
apply the net proceeds from the sale of the Stock being sold by the Company substantially in accordance with the description as set forth
in the Prospectus under the caption “Use of Proceeds.”
(xii) To
file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities
Act.
(xiii) If
the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement, and the Company shall pay the Commission the filing fee for the Rule 462(b) Registration Statement
prior to 5:00 P.M. Washington, D.C. time, on the next business day following the date of this Agreement.
(xiv) The
Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would
be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the
offering of the Stock.
(xv) The
Company and its affiliates will do and perform all things required or necessary to be done and performed under this Agreement by them
prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the
Stock.
(b) Each
Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433
under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or
referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company
has given its consent, “Permitted Issuer Information”); provided that (i) no such consent shall
be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the
use of such free writing prospectus, and (ii) “issuer information”, as used in this Section 5(b), shall not be deemed
to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
6. Expenses.
The Company agrees, whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to
pay all expenses, costs, fees and taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of
the Stock and any stamp duties, stock transfer taxes or other similar taxes payable in connection therewith, and the preparation and printing
of certificates for the Stock; (b) the preparation, printing and filing under the Securities Act of the Registration Statement (including
any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement
thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus, and any amendment or supplement thereto, or any document incorporated by reference therein, all as
provided in this Agreement; (d) the production and distribution of this Agreement, any supplemental agreement among Underwriters,
and any other related documents in connection with the offering, purchase, sale and delivery of the Stock; (e) any required review
by FINRA of the terms of sale of the Stock (including related fees and expenses of counsel to the Underwriters in an amount that is not
greater than $20,000); (f) the listing of the Stock on the New York Stock Exchange; (g) the qualification of the Stock under
the securities laws of the several jurisdictions as provided in Section 5(a)(ix) and the preparation, printing and distribution
of a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters); (h) the preparation, printing and
distribution of one or more versions of the Preliminary Prospectus and the Prospectus for distribution in Canada, including in the form
of a Canadian “wrapper” (including related fees and expenses of Canadian counsel to the Underwriters), to the extent applicable;
(i) the investor presentations on any “road show”, undertaken in connection with the marketing of the Stock, including,
without limitation, expenses associated with any electronic road show, travel and lodging expenses of the representatives and officers
of the Company and one-half of the cost of any aircraft chartered in connection with the road show, to the extent applicable; and (j) all
other costs and expenses incident to the performance of the obligations of the Company under this Agreement; provided that, except
as provided in this Section 6 and in Section 11, the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes or other similar taxes on the Stock which they may sell and the expenses of advertising
any offering of the Stock made by the Underwriters.
7. Conditions
of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company contained herein, to the performance by the Company of
their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i). The Company shall have complied with
all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending
the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall
have been complied with. If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement.
(b) No
Underwriter shall have discovered and disclosed to the Company on or prior to such Delivery Date that the Registration Statement, the
Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in
the opinion of Latham & Watkins LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All
corporate and other legal matters incident to the authorization, form and validity of this Agreement, the Stock, the Registration Statement,
the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished
to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Vinson &
Elkins L.L.P. as counsel to the Company, shall have furnished to the Representatives its written opinion addressed to the Underwriters
and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives.
(e) The
Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion or opinions, dated
such Delivery Date, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure
Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) At
the time of execution of this Agreement, the Representatives shall have received from Ernst & Young LLP one or more letters,
in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming
that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial
information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings.
(g) With
respect to the letters of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (each, an “initial letter”), the Company shall have furnished to the Representatives
one or more letters (each, a “bring-down letter”) of such accountants, addressed to the Underwriters and dated
such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the applicable bring-down letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days
prior to the date of the applicable bring-down letter), the conclusions and findings of such firm with respect to the financial information
and other matters covered by the applicable initial letter, and (iii) confirming in all material respects the conclusions and findings
set forth in the applicable initial letter.
(h) The
Company shall have furnished to the Representatives a certificate, dated such Delivery Date, of the Chief Executive Officer and the Chief
Financial Officer of the Company as to such matters as the Representatives may reasonably request, including, without limitation, a statement
that:
(i) the
representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such Delivery Date, and
the Company has complied with all of its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to such Delivery Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose
have been instituted or, to the knowledge of such officers, threatened; and the Commission shall not have notified the Company of any
objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) they
have examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the
Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the
Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not
and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case
of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective
Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus that has not been so set forth.
(i) Except
as described in the most recent Preliminary Prospectus, (i) none of the Company Entities shall have sustained, since the date of
the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference
with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, or (ii) since such date there shall not have been any change in the capitalization or long-term
debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company
and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or
in the aggregate, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Stock being delivered on such Delivery Date on the terms and in the manner contemplated
in the Prospectus.
(j) Subsequent
to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s
securities by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62)
of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s securities.
(k) Subsequent
to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) (A) trading in securities
generally on any securities exchange that has registered with the Commission under Section 6 of the Exchange Act (including the New
York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or The Nasdaq Capital Market), or (B) trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement
of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a
general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after
the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) or any other calamity
or crisis, either within or outside the United States, in each case as to make it, in the judgment of the Representatives, impracticable
or inadvisable to proceed with the public offering or delivery of the Stock being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(l) The
New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance.
(m) The
Lock-Up Agreements between the Representatives and the officers, directors and stockholders of the Company set forth on Schedule IV, delivered
to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(n) On
or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Representatives
may reasonably request.
(o) FINRA
shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
All opinions, letters, evidence
and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification
and Contribution.
(a) The
Company hereby agrees to indemnify and hold harmless each Underwriter, its directors, officers, employees, and the agents of each Underwriter
who have or who are alleged to have participated in the distribution of the Stock as underwriters (collectively, the “selling
agents”), and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and each affiliate of such Underwriter who has or is alleged to have participated in the offering
of the Stock (each such affiliate, a “Participating Affiliate”) from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter, Participating Affiliate, director, officer, employee, selling agent
or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any
Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free
Writing Prospectus or in any amendment or supplement thereto, (C) any Permitted Issuer Information used or referred to in any “free
writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by any Underwriter, (D) 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 Stock, including any “road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer
Free Writing Prospectus (“Marketing Materials”), or (E) any Blue Sky application or other document prepared
or executed by the Company (or based upon any written information furnished by the Company for use therein) specifically for the purpose
of qualifying any or all of the Stock under the securities laws of any state or other jurisdiction (any such application, document or
information being hereinafter called a “Blue Sky Application”) or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment
or supplement thereto or in any Permitted Issuer Information, any Marketing Materials or any Blue Sky Application, any material fact required
to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the
circumstances under which they were made) not misleading, and shall reimburse each Underwriter and each such Participating Affiliate,
director, officer, employee, selling agent or controlling person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, Participating Affiliate, director, officer, employee, selling agent or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto
or in any Permitted Issuer Information, any Marketing Materials or any Blue Sky Application, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise have to any Underwriter or to any Participating Affiliate, director, officer,
employee, selling agent or controlling person of that Underwriter.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its directors (including director nominees), officers,
employees and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which
the Company or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or in any Marketing Materials or Blue Sky Application, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any Marketing Materials or Blue Sky Application, any material fact required to be stated therein
or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under
which they were made) not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited
to the information set forth in Section 8(e). The foregoing indemnity agreement is in addition to any liability that any Underwriter
may otherwise have to the Company or any such director, officer, employee or controlling person.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially
prejudiced (through the forfeiture of substantive rights and defenses) by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other indemnified parties
and their respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought under this Section 8 if (i) the indemnified party and the indemnifying party shall
have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory
to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling persons shall have reasonably
concluded that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying
party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or
their respective directors, officers, employees or controlling persons, on the one hand, and the indemnifying party, on the other hand,
and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between
them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party;(it being understood,
however, that the indemnifying party shall not be liable for the expense of more than one separate counsel (in addition to local counsel)
in any one action, suit or proceeding or series of related actions, suits or proceedings in the same jurisdiction representing the indemnified
parties who are parties to such action, suit or proceeding). No indemnifying party shall (x) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and 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, or (y) be liable for any settlement of any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(a) or
(b) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request or disputed in good
faith the indemnified party’s entitlement to such reimbursement prior to the date of such settlement.
(d) If
the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a), 8(b), 8(c) or 8(f) in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, from the offering of the Stock, or (ii) if the allocation provided by clause (i) above 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 the Underwriters, on the other, with respect to the statements or omissions that resulted
in such loss, claim, damage or liability, or action in respect thereof, 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, with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses)
received by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, as set forth in the table
on the cover page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied
by the Company or the Underwriters, the intent of the parties and their relative 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 contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(d), in no event shall an Underwriter be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Stock exceeds
the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations
and not joint.
(e) The
Underwriters severally confirm and the Company acknowledges and agrees that the statements regarding delivery of Stock by the Underwriters
set forth on the cover page of, and the concession and reallowance figures and the paragraph relating to stabilization by the Underwriters
appearing under the caption “Underwriting” in, the most recent Preliminary Prospectus and the Prospectus are correct and constitute
the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically
for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Marketing Materials.
9. Defaulting
Underwriters.
(a) If,
on any Delivery Date, any Underwriter defaults in its obligations to purchase the Stock that it has agreed to purchase under this Agreement,
the remaining non-defaulting Underwriters may in their discretion arrange for the purchase of such Stock by the non-defaulting Underwriters
or other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Stock, then the Company shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Stock on such
terms. In the event that within the respective prescribed periods, the non-defaulting Underwriters notify the Company that they have so
arranged for the purchase of such Stock, or the Company notifies the non-defaulting Underwriters that it has so arranged for the purchase
of such Stock, either the non-defaulting Underwriters or the Company may postpone such Delivery Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment
or supplement to the Registration Statement, the Prospectus or in any such other document or arrangement that effects any such changes.
As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule I hereto that, pursuant to this Section 9, purchases Stock that a defaulting Underwriter
agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Stock of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the total number of shares of the Stock that remains unpurchased
does not exceed one-eleventh of the total number of shares of all the Stock, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the total number of shares of Stock that such Underwriter agreed to purchase hereunder plus such Underwriter’s
pro rata share (based on the total number of shares of Stock that such Underwriter agreed to purchase hereunder) of the Stock of
such defaulting Underwriter or Underwriters for which such arrangements have not been made; provided that the non-defaulting Underwriters
shall not be obligated to purchase more than 110% of the total number of shares of Stock that it agreed to purchase on such Delivery Date
pursuant to the terms of Section 2.
(c) If,
after giving effect to any arrangements for the purchase of the Stock of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the total number of shares of Stock that remains unpurchased exceeds
one-eleventh of the total number of shares of all the Stock, or if the Company shall not exercise the right described in paragraph (b) above,
then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 9 shall be without liability on the part of the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Sections 6 and 11 and except that the provisions of Section 8 shall not terminate
and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter
for damages caused by its default.
10. Termination.
The obligations of the Underwriters hereunder may be terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock if, prior to that time, any of the events described in Sections 7(i), 7(j), or 7(k) shall
have occurred or if the Underwriters shall decline to purchase the Stock for any reason permitted under this Agreement.
11. Reimbursement
of Underwriters’ Expenses. If (a) the Company shall fail to tender the Stock for delivery to the Underwriters for any reason,
or (b) the Underwriters shall decline to purchase the Stock for any reason permitted under this Agreement (other than Sections 7(k)(i)(A),
(k)(ii), (k)(iii) or (k)(iv)), the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel for the Underwriters) incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Stock, and upon demand the Company shall pay the full amount thereof to the Representatives; provided, however,
that such obligations of the Company pursuant to clause (a) hereof shall not extend to a defaulting Underwriter. If this Agreement
is terminated pursuant to Section 9 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse
any defaulting Underwriter on account of those expenses.
12. Research
Analyst Independence. The Company acknowledges that the Underwriters’ research analysts and research departments are required
to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and
that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters
with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts
and research departments may be different from or inconsistent with the views or advice communicated to the Company or its predecessors
or, prior to the Company’s conversion to a corporation, the partnership’s general partner and the sponsor of the partnership
(collectively, the “Company Parties”), by such Underwriters’ investment banking divisions. The Company
acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the companies that may be the subject of the transactions contemplated by this Agreement.
13. No
Fiduciary Duty. The Company acknowledges and agrees that in connection with this offering, sale of the Stock or any other services
the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or subsequently made by the Underwriters: (a) no fiduciary or agency
relationship between the Company Parties and any other person, on the one hand, and the Underwriters, on the other, exists; (b) the
Underwriters are not acting as advisors, expert or otherwise, to either the Company Parties, including, without limitation, with respect
to the determination of the public offering price of the Stock, and such relationship between the Company Parties, on the one hand, and
the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations
that the Underwriters may have to the Company Parties shall be limited to those duties and obligations specifically stated herein; and
(d) the Underwriters and their respective affiliates may have interests that differ from those of the Company Parties. The Company
hereby waives any claims that they may have against the Underwriters with respect to any breach of fiduciary duty in connection with this
offering.
14. Notices, etc.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail or facsimile transmission to Goldman Sachs & Co. LLC, 200 West Street,
New York, New York 10282, Attention: Registration Department; Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York
10013 (fax: (646) 291-1469); Attention: General Counsel; and J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179
(fax: (212) 622-8358); Attention: Equity Syndicate Desk; and
(b) if
to the Company, shall be delivered or sent by mail or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: General Counsel (Fax: (240) 482-3774).
Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by Goldman Sachs & Co. LLC, Citigroup Global Markets Inc.and J.P. Morgan Securities
LLC on behalf of the Representatives.
15. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except
that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed
to be for the benefit of the directors, officers and employees of the Underwriters and each person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of the Underwriters contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of the directors of the Company, the officers of the
Company who have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in
this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
16. Survival.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained
in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment
for the Stock and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person
controlling any of them.
17. Definition
of the Terms “Business Day”, “Affiliate” and “Subsidiary”. For purposes of this Agreement, (a) “business
day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close, and (b) “affiliate” and “subsidiary”
have the meanings set forth in Rule 405 under the Securities Act.
18. 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 conflict of laws principles (other than Section 5-1401 of
the General Obligations Law).
19. Waiver
of Jury Trial. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. Counterparts;
Electronic Signatures. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act
of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and
effective for all purposes.
21. Headings.
The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
22. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any of the Underwriters 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 of the Underwriters 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 the purposes of this Section 22:
“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 Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature pages follow.]
If the foregoing correctly
sets forth the agreement among the Company and the Underwriters, please indicate your acceptance in the space provided for that purpose
below.
|
| Title: | Executive Vice President and Chief Financial Officer |
[Signature Page to Underwriting Agreement]
Accepted:
Goldman Sachs & Co.
LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
For itself and as a Representative
of the several Underwriters named
in Schedule I hereto
| By: Goldman Sachs & Co. LLC |
|
| |
|
| By: |
/s/ Charles Park |
|
| Name: Charles Park |
|
| Title: Managing Director |
|
| |
|
| By: Citigroup Global Markets Inc. |
|
| |
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| By: |
/s/ Greg Kantrowitz |
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| Name: Greg Kantrowitz |
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| Title: Managing Director |
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| |
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| By: J.P. Morgan Securities LLC |
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| |
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| By: |
/s/ Lucy Brash |
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| Name: Lucy Brash |
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| Title: Executive Director |
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[Signature Page to Underwriting Agreement]
SCHEDULE I
| Underwriters | |
Number of Shares of
Firm Stock | |
| Goldman Sachs & Co. LLC | |
| 1,505,000 | |
| Citigroup Global Markets Inc. | |
| 1,075,000 | |
| J.P. Morgan Securities LLC | |
| 430,000 | |
| Barclays Capital Inc. | |
| 227,900 | |
| BMO Capital Markets Corp. | |
| 227,900 | |
| HSBC Securities (USA) Inc. | |
| 227,900 | |
| RBC Capital Markets, LLC | |
| 227,900 | |
| Truist Securities, Inc. | |
| 227,900 | |
| Raymond James & Associates, Inc. | |
| 86,000 | |
| Loop Capital Markets LLC | |
| 32,250 | |
| USCA Securities LLC | |
| 32,250 | |
| Total | |
| 4,300,000 | |
SCHEDULE II
CONVEYED PRICING INFORMATION
1. Public offering price: $70.00
2. Number of Shares of Common Stock offered:
4,300,000
SCHEDULE III
ISSUER FREE WRITING PROSPECTUSES – ROAD
SHOW MATERIALS
Electronic roadshow as made available on http://www.netroadshow.com.
SCHEDULE IV
PERSONS DELIVERING LOCK-UP AGREEMENTS
Inclusive Capital Partners, L.P.
Riverstone Echo Continuation Holdings, L.P.
Riverstone Echo Rollover Holdings, L.P.
Riverstone Echo PF Holdings, L.P.
Directors
Ralph Alexander
John C. Bumgarner, Jr.
Martin N. Davidson
Jim H. Derryberry
John K. Keppler
Fauzul Lakhani
Gerrit L. Lansing, Jr.
Pierre F. Lapeyre, Jr.
David M. Leuschen
Jeffrey W. Ubben
Gary L. Whitlock
Janet S. Wong
Eva T. Zlotnicka
Officers
Shai S. Even
Michael A. Johnson
John K. Keppler
Roxanne B. Klein
Yanina A. Kravtsova
Thomas Meth
William H. Schmidt, Jr.
E. Royal Smith
EXHIBIT A
FORM OF LOCK-UP LETTER AGREEMENT
Goldman Sachs & Co.
LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
As Representatives of the several
Underwriters named in Schedule
I to the Underwriting Agreement,
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
The undersigned understands
that you and certain other firms (the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) providing for the purchase by the Underwriters of shares (the “Stock”) of common stock,
par value $0.001 per share (the “Common Stock”), of Enviva Inc., a Delaware corporation (the “Company”),
and that the Underwriters propose to reoffer the Stock to the public (the “Offering”).
In consideration of the execution
of the Underwriting Agreement by the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably
agrees that, without the prior written consent of Goldman Sachs & Co. LLC, Citigroup Global Markets Inc. and J.P. Morgan Securities
LLC, on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise
dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to
be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission
and shares of Common Stock that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable
or exchangeable for Common Stock, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic consequences of ownership of shares of Common Stock, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) make any demand for or
exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration
of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or any other securities
of the Company or (4) publicly disclose the intention to do any of the foregoing for a period commencing on the date hereof and
ending on the 60th day after the date of the Prospectus relating to the Offering (such 60-day period, the “Lock-Up Period”).
The
foregoing paragraph shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in the open
market after the completion of the offering, (b) bona fide gifts, sales or other dispositions of any class of the Company’s
capital stock, in each case that are made exclusively between and among the undersigned or members of the undersigned’s family,
or affiliates of the undersigned, including its partners (if a partnership) or members (if a limited liability company); provided
that it shall be a condition to any transfer pursuant to this clause (b) that (i) the transferee/donee agrees to be bound
by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to
the same extent as if the transferee/donee were a party hereto, (ii) each party (donor, donee, transferor or transferee) shall not
be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended (the Securities
Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) to make, and
shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of the
Lock-Up Period, and (iii) the undersigned notifies Goldman Sachs & Co. LLC, Citigroup Global Markets Inc. and J.P. Morgan
Securities LLC at least two business days prior to the proposed transfer or disposition, (c) the exercise of warrants or the exercise
of options granted, or vesting or exercise of any other equity-based awards, in each case pursuant to the Company’s option/incentive
plans or otherwise outstanding on the date hereof and the withholding of shares of Common Stock by the Company for the payment of taxes
in connection with such exercise or vesting; provided, that the restrictions shall apply to shares of Common Stock issued upon
such exercise or conversion, (d) distributions of shares of Common Stock or any security convertible into Common Stock to limited
partners, members or stockholders of the undersigned or transfers to any investment fund or other entity controlling, controlled by or
under common control with, or managed by the undersigned, (e) the establishment of any contract, instruction or plan that satisfies
all of the requirements of Rule 10b5-1 (a “Rule 10b5-1 Plan”) under the Exchange Act; provided,
however, that no sales of Common Stock or securities convertible into, or exchangeable or exercisable for, Common Stock, shall
be made pursuant to a Rule 10b5-1 Plan prior to the expiration of the Lock-Up Period; provided further, that the Company
is not required to report the establishment of such Rule 10b5-1 Plan in any public report or filing with the Commission under the
Exchange Act during the Lock-Up Period and does not otherwise voluntarily effect any such public filing or report regarding such Rule 10b5-1
Plan, (f) any demands or requests for, any exercise of any right with respect to, or the taking of any action in preparation of,
the registration by the Company under the Securities Act of the undersigned’s shares of Common Stock; provided that no transfer
of the undersigned’s shares of Common Stock registered pursuant to the exercise of any such right and no registration statement
shall be filed under the Securities Act with respect to any of the undersigned’s shares of Common Stock during the Lock-Up Period,
and (g) transfers by will, other testamentary document, or intestate succession, including transfers to any trust, to the legal
representative, heir, beneficiary or a member of the immediate family of the undersigned; provided
that in the case of any transfer or distribution pursuant to clauses (d) and (g), (i) each donee or distributee shall
sign and deliver a lock-up agreement substantially in the form of this agreement for the balance of the Lock-Up Period and (ii) no
filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock shall
be required or shall be voluntarily made during the Lock-Up Period, but if a filing is otherwise required and made, it shall clearly
indicate in the footnotes thereto that (x) such transfer is being made pursuant to the circumstances described in clause (d) or
(g), as applicable, and (y) each donee or distributee shall sign and deliver a lock-up agreement substantially in the form of this
agreement for the balance of the Lock-Up Period.
In furtherance of the foregoing, the Company and its transfer agent
are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up
Letter Agreement.
It is understood that, if the
Company notifies the Underwriters that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Stock, the undersigned will be released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands
that the Company and the Underwriters will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering
actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
The undersigned acknowledges
and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action
from the undersigned with respect to the Offering and the undersigned has consulted their own legal, accounting, financial, regulatory
and tax advisors to the extent deemed appropriate.
This Lock-Up Letter Agreement
and any transaction contemplated by this Lock-Up Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to conflict of laws principles that would result in the application of any other law than the laws of
the State of New York (other than Section 5-1401 of the General Obligations Law).
This
Lock-Up Letter Agreement shall automatically terminate upon the termination of the Underwriting Agreement before the sale of any
Stock to the Underwriters.
[Signature page follows]
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will execute any additional
documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
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Very truly yours, |
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By: |
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Name: |
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Title: |
Dated: _______________
