EX-1.1
Exhibit 1.1
Execution Version
30,250,000
FAIRMOUNT
SANTROL HOLDINGS INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
October 19,
2016
October 19, 2016
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Fairmount Santrol Holdings Inc., a Delaware corporation (the “Company”), proposes to issue and sell to Morgan
Stanley & Co. LLC (the “Underwriter”), the number of shares of its common stock, par value $0.01 per share, set forth in Schedule I hereto (the “Firm Shares”). The Company also proposes to issue and sell to
the Underwriter not more than the number of additional shares of its common stock, par value $0.01 per share, set forth in Schedule I hereto (the “Additional Shares”) if and to the extent that you shall have determined to exercise,
the right to purchase such shares of common stock granted to the Underwriter in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The shares of common stock,
par value $0.01 per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement,
including a prospectus, (the file number of which is set forth in Schedule I hereto) on Form S-3, relating to the securities (the “Shelf Securities”), including the Shares, to be issued from time to time by the Company. The
registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of
1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”, and the related prospectus covering the Shelf Securities dated July 14, 2016 in the form first used to
confirm sales of the Shares (or in the form first made available to the Underwriter by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic Prospectus.”
The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriter by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of this
Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the documents and pricing information set forth opposite the caption “Time of
Sale Prospectus” in Schedule I hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction
to any person. As used herein, the terms “Registration Statement,”
“Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference
therein as of the date hereof. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be
incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees
with the Underwriter that:
(a) The Registration Statement has become effective under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus
or the Prospectus complied or will comply when so filed (and in the case of the Form 10-K for the year ended December 31, 2015, as amended by a Form 10-K/A) in all material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with
the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and
(vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus
based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein.
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(c) The Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or
on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without
your prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has
been duly incorporated or formed, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or other power and authority to own its
property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
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(h) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly
authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its obligations
under, this Agreement will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any
subsidiary, except, with respect to clauses (i), (iii) and (iv), to the extent that such contravention would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or a material
adverse effect on the ability of the Company to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would
not be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
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(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities
associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) Except as described in the Time of Sale Prospectus, there are no contracts, agreements or
understandings between the Company 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 or to require the Company to include such
securities with the Shares registered pursuant to the Registration Statement, except as have been satisfied or waived.
(r) Neither the
Company nor any of its subsidiaries or controlled affiliates, nor any director, employee or officer, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its subsidiaries or controlled affiliates, has
(i) taken or will take any action in furtherance of an offer, payment, promise to pay, authorization or approval of the unlawful payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any government
official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political
party or party official or candidate for political office) to influence official action or secure an improper advantage or (ii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977 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 of 2010 of the United Kingdom, or other applicable anti-bribery or
anti-corruption law; and the Company and its subsidiaries and controlled
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affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures designed to
promote and achieve compliance with such laws and with the representation and warranty contained herein.
(s) The operations of the Company
and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries 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 “Anti-Money Laundering Laws”), and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(t) (i) Neither the Company nor any of its subsidiaries, nor any director or officer thereof, nor, to the
Company’s knowledge, any employee, agent, controlled affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets
Control (“OFAC”) , the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located, organized or resident in a country or territory that is the subject of
Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
(ii) 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:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of
Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not
engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
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(u) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its subsidiaries, taken as a whole, have not incurred any material liability or obligation, direct or contingent, nor entered into any material
transaction; (ii) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends; and
(iii) there has not been any material adverse change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, taken as a whole, except in each case as described in each of the Registration Statement, the Time
of Sale Prospectus and the Prospectus, respectively.
(v) The Company and its subsidiaries have good and marketable title to all real
property and personal property owned by them which is material to the business of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale
Prospectus or such as 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 and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as described in the Time of Sale Prospectus.
(w) The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(x) No material labor dispute with
the employees of the Company or any of its subsidiaries exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its suppliers, manufacturers or contractors that could have a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(y) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for;
and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(z) The Company and its subsidiaries, taken as a whole, possesses all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(aa) The Company and its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed by them through the
date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes
required to be paid thereon (except for cases in which the failure to file or pay would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except as currently being contested in good faith and for which
reserves required by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its
subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(bb) The Company and its subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or
incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described
in the Time of Sale Prospectus, since the end of the Company’s most recent
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audited fiscal year, there has been(i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(cc) As of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective
purchasers, none of (A) the Time of Sale Prospectus, and (B) any free writing prospectus, when considered together with the Time of Sale Prospectus included, includes or will include an untrue statement of a material fact or omitted, omits
or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(dd) The accountants who certified the financial statements and any supporting schedules included in the Registration Statement and the Time of
Sale Prospectus are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations of the Commission thereunder and the PCAOB.
(ee) The financial statements of the Company included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together
with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the dates indicated and the results of operations, changes in stockholders’ equity
and cash flows of the Company and its consolidated subsidiaries for the periods specified and all such financial statements have been prepared in conformity with U.S. GAAP applied on a consistent basis throughout the periods involved and comply with
all applicable accounting requirements under the Securities Act and the applicable rules and regulations of the Commission thereunder. The supporting schedules, if any, included in the Registration Statement present fairly in all material respects,
in accordance with U.S. GAAP, the information required to be stated therein. The information in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the captions “Summary Historical Consolidated Financial and
Operating Data” presents fairly in all material respects the information shown therein and has been compiled on a basis consistent with that of the audited financial statements of the Company included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus. All “non-GAAP financial measures” (as such term is defined in the rules and regulations of the Commission), if any, contained in the Registration Statement, the General Disclosure Package and the
Prospectus comply with Item 10 of Regulation S-K of the Commission, to the extent applicable.
(ff) The information in the preliminary
prospectus and the Prospectus under the captions “Risk Factors—Risks Related to Environmental, Mining and Other Regulation,” “Management’s Discussion and Analysis of Financial Condition and Results of
Operations—Liquidity and Capital Resources,” “Business—Regulation and Legislation,” “Legal Proceedings,” “Business—Intellectual Property,” “Certain Relationships and Related Transactions,”
“Description of Capital Stock,” and “Material
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U.S. Federal Income Tax Considerations For Non-U.S. Holders” and the information in the Registration Statement under Items 14 and 15, in each case to the extent that it constitutes matters
of law, summaries of legal matters, summaries of provisions of the Company’s charter or bylaws or any other instruments or agreements, summaries of legal proceedings, or legal conclusions, is correct in all material respects; all descriptions
in the Registration Statement, the Time of Sale Prospectus and the Prospectus of any other contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments
or agreements to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound are accurate in all material respects; and there are no franchises, contracts, indentures, mortgages, deeds of
trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments, agreements or documents required to be described or referred to in the Registration Statement, the Time of Sale Prospectus or the
Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(gg) The
Company has not taken and will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Shares.
(hh) Any statistical, demographic, market-related and similar data included in the Registration
Statement, the Time of Sale Prospectus or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate and accurately reflect the materials upon which such data is based or from which it was derived.
(ii) There are no business relationships or related party transactions involving the Company or any of its subsidiaries or, to the knowledge of
the Company, any other person that are required to be described in the preliminary prospectus or the Prospectus that have not been described as required.
(jj) There is not a broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee
or commission as a result of any of the transactions contemplated by this Agreement, except for underwriting discounts, commissions and other fees payable to the Underwriter in connection with the sale of the Shares to the Underwriter pursuant to
this Agreement.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the Underwriter, and the Underwriter,
upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, to purchase from the Company the respective numbers of Firm Shares set forth in Schedule II hereto opposite its
name at the purchase price set forth in Schedule I hereto (the “Purchase Price”).
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On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriter the Additional Shares, and the Underwriter shall have the right to purchase up to the number of Additional Shares set forth in Schedule I hereto at the Purchase Price, provided,
however, that the amount paid by the Underwriter for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. You may
exercise this right in whole or from time to time in part by giving written notice not later than 30 days after the date of the Prospectus. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriter and the
date on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of
such notice. Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of covering sales of shares in excess of the number of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an
“Option Closing Date”), the Underwriter agrees to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
3. Public Offering. The Company is advised by you that the Underwriter proposes to make a public offering of the Shares as soon
after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Company is further advised by you that the Shares are to be offered to the public upon the terms set forth in the Prospectus.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal or other funds immediately
available in New York City on the closing date and time set forth in Schedule I hereto, or at such other time on the same or such other date, not later than the fifth business day thereafter, as may be determined by agreement between you and the
Company. The time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City on the date
specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date, not later than the fifth business day thereafter, as may be determined by agreement between you and the Company.
The Firm Shares and the Additional Shares shall be registered in such names and in such denominations as you shall request in writing not
later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts of the Underwriter, with any transfer taxes payable in connection with the transfer of the Shares to
the Underwriter duly paid, against payment of the Purchase Price therefor.
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5. Conditions to the Underwriter’s Obligations. The obligations of the
Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii)
there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set
forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by the chief financial officer of
the Company, with respect to certain financial information contained in the Prospectus, in form and substance satisfactory to the Underwriter.
(d) The Underwriter shall have received on the Closing Date an opinion of Calfee, Halter & Griswold LLP, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company is validly existing as a corporation and is in good
standing under the laws of the State of Delaware, has the corporate power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Time of Sale Prospectus and is duly qualified
to do business as a foreign corporation and is in good standing in each jurisdiction listed on Schedule III, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
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(ii) each subsidiary of the Company listed on Schedule III is validly existing as
a corporation, limited liability company or limited partnership, as applicable, in good standing under the laws of the jurisdiction of its formation; each subsidiary of the Company listed on Schedule III has the corporate, limited liability company
or partnership, as applicable, power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to do business and is in good
standing in each jurisdiction listed on Schedule III, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of
the Time of Sale Prospectus and the Prospectus;
(iv) the shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(v) the Shares to be issued and sold by the Company to the Underwriter under this Agreement have been duly authorized and, when
issued and delivered by the Company to the Underwriter upon payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The execution, delivery and performance by the Company of its obligations under this
Agreement and the issuance and sale of the Shares being delivered on the Closing Date or the Option Closing Date, as the case may be, and the compliance by the Company with the terms thereof will not (i) result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any agreement or instrument
to which the Company or any of its subsidiaries is a party which has been filed or incorporated by reference as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2015, (ii) result in any violation
of the provisions of the charter or by-laws of the Company or (iii) result in the violation of (A) any provisions of the General Corporation Law of the State of Delaware and those state laws of the State of Ohio and federal laws of the
United States of America which are normally applicable to transactions of the type contemplated by this Agreement, but not
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including federal or state securities or blue sky laws, including without limitation the Securities Act, the Exchange Act or the Investment Company Act, antifraud laws, or in each case any rules
and regulations thereunder or (B) to our knowledge, any order, known to such counsel, of any court, governmental or regulatory authority having jurisdiction over the Company.
(viii) the statements relating to legal matters, documents or proceedings included in the Time of Sale Prospectus and the
Prospectus under the captions “Legal Proceedings” and “Description of Capital Stock,” in each case fairly summarize in all material respects such matters, documents or proceedings;
(ix) the statements made in each of the Time of Sale Prospectus and the Prospectus under the caption “Material U.S.
Federal Income Tax Considerations For Non-U.S. Holders,” insofar as they purport to constitute summaries of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects;
(x) the Company is not, and after giving effect to the offering and
sale of the Shares pursuant to the terms of this Agreement and the application of the net proceeds thereof as described in the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds” will not be, required to register
as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(xi) (A)
in the opinion of such counsel (1) each document filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus (except for the financial statements and financial schedules and other financial
and statistical data and sand reserve information included therein, as to which such counsel need not express any opinion) appeared on its face to be appropriately responsive as of its filing date (and in the case of the Form 10-K for the year ended
December 31, 2015, as amended by a Form 10-K/A) in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, and (2) the Registration Statement and the Prospectus
(except for the financial statements and financial schedules and other financial and statistical data and sand reserve information included therein as to which such counsel need not express any opinion) appear on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, and (B) nothing has come to the attention of such counsel that causes such counsel to believe
that (1) any part of the Registration Statement, when such part became effective, (except for the financial statements and financial schedules and other financial and statistical data and sand reserve information included therein as to which
such counsel need not express any belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Time of Sale
Prospectus (except for the
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financial statements and financial schedules and other financial and statistical data and sand reserve information included therein, as to which such counsel need not express any belief) as of
the date of this Agreement or as amended or supplemented, if applicable, as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits 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 or (3) the Prospectus (except for the financial statements and financial schedules and other financial and statistical data and sand reserve information
included therein, as to which such counsel need not express any belief) as amended or supplemented, if applicable, as of the Closing Date contains any untrue statement of a material fact or omits 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; and
(xii) to such
counsel’s knowledge there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(e) The Underwriter shall have received on the Closing Date an opinion of David Crandall, general counsel
of the Company, dated the Closing Date, to the effect that:
(i) all of the issued shares of capital stock, limited
liability company interests, or partnership interests, as applicable, of each subsidiary of the Company listed on Schedule III are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (A) in
respect of which a financing statement under the Uniform Commercial Code of the State of Delaware as of October , 2016 has been filed or (B) otherwise known to him, without independent investigation other than those created or arising under the
DGCL, the DRULPA, or the Delaware LLC Act, except those securing the Company’s obligations under that certain Second Amended and Restated Credit and Guaranty Agreement, dated as of September 5, 2013, among the Company, certain of its
affiliates, the Lenders party thereto from time to time, and Barclays Bank PLC, as Administrative Agent, as amended; and
(ii) after due inquiry, he does not know of any legal or governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described.
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(f) The Underwriter shall have received on the Closing Date an opinion of Latham &
Watkins LLP, counsel for the Underwriter, dated the Closing Date, covering the matters referred to in Sections 5(d)(vi), 5(d)(xii) and to the effect that the statements relating to legal matters, documents or proceedings included in the Time of
Sale Prospectus and the Prospectus under the caption “Underwriting” fairly summarize in all material respects such matters, documents or proceedings.
With respect to Section 5(d)(xii) above, Calfee, Halter & Griswold LLP and Latham & Watkins LLP may state that their
opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification, except as specified.
The opinions of Calfee, Halter & Griswold LLP and David
Crandall described in Section 5(d) and 5(e) above shall be rendered to the Underwriter at the request of the Company and shall so state therein.
(g) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the Underwriter, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’
“comfort letters” to the underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter
delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriter, from GZA, GeoEnvironmental, Inc. stating the conclusions and findings of such firm with respect to the Company’s estimated sand reserves as is customary to underwriters
in connection with registered offerings.
(i) The “lock-up” agreements, each
substantially in the form of Exhibit A hereto, between you, ASP FML Holdings, LLC, and officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on
or before the date hereof, shall be in full force and effect on the Closing Date.
(j) At the Closing Date and each Option Closing Date, if
any, the Shares to be purchased by the Underwriter at such time shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) The obligations of the Underwriter to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the
Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
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(ii) a certificate, dated the Option Closing Date and signed by the chief
financial officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(c) hereof remains true and correct as of such Option Closing Date;
(iii) an opinion of Calfee, Halter & Griswold LLP, outside counsel for the Company, dated the Option Closing Date,
relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of David Crandall, general counsel of the Company, dated the Option Closing Date relating to the Additional
Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof
(v) an opinion of Latham & Watkins LLP, counsel for the Underwriter, dated the Option Closing Date, relating to the
Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriter, from PricewaterhouseCoopers
LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriter pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a
“cut-off date” not earlier than three business days prior to such Option Closing Date;
(vii) a letter dated the
Option Closing Date, in form and substance satisfactory to the Underwriter, from GZA, GeoEnvironmental, Inc., substantially in the same form and substance as the letter furnished to the Underwriter pursuant to Section 5(h) hereof;
(viii) such other documents as you may reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
6. Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) To furnish to you, without charge, a copy of the Registration Statement (including exhibits thereto and documents incorporated by reference
therein) and to deliver to the Underwriter during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as you may reasonably request.
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(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or
the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company
and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would
result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the
Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of
the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel
for the Underwriter, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request,
either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a
prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the
Underwriter the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you and to any other
18
dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when
the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided that in no event shall the Company be obligated to do business in any jurisdiction where it is not now qualified or to take any action that would subject it to service of process in suits, other than those arising out of the
offering or the sale of Shares, or taxation in any jurisdiction where it is not now subject.
(h) To make generally available to the
Company’s security holders and to you as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not
the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing,
including the filing fees payable to the Commission relating to the Shares (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriter and
dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriter, including any transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriter in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,
provided that the Company’s obligations under this clause (iii) shall not exceed $20,000 (iv) all filing fees incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory
Authority (including related fees and disbursements of counsel to the Underwriter), provided that the Company’s obligations under this clause (iv) relating to fees and disbursements of counsel to the Underwriter shall not exceed $30,000,
(v) all costs and expenses incident to listing the Shares on the NYSE, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the
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costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and 50% of the cost of any aircraft chartered in connection with the roadshow
(ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriter will pay all of its costs and
expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by the Underwriter and any advertising expenses connected with any offers it may make and the transportation and other expenses
incurred by the Underwriter on its own behalf in connection with presentations to prospective purchasers of the Shares.
(j) If the third
anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold by the Underwriter, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary
to permit the public offering of the Shares to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
(k) If requested by the Underwriter, to prepare a final term sheet relating to the offering of the Shares, containing only information that
describes the final terms of the offering in a form consented to by the Underwriter, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established
for the offering of the Shares.
The Company also covenants with the Underwriter that, without the prior written consent of the
Underwriter identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriter, it will not, during the restricted period set forth in Schedule I hereto (the “Restricted Period”), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) file any registration statement with the Commission relating
to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The foregoing sentence shall not apply to (a) the Shares to be sold hereunder, (b) the issuance by the
Company of shares of Common
20
Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and disclosed or incorporated by reference in the Time of Sale Prospectus,
(c) the issuance of stock options, restricted stock, shares of Common Stock or other equity incentive awards pursuant to the Company’s equity compensation or director compensation plans in effect as of the date hereof and that are
described in the Time of Sale Prospectus, or (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan does not provide for the
transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such
announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period.
7. Covenants of the Underwriter. The Underwriter covenants with the Company not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of the Underwriter within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any
issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in
Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Underwriter
furnished to the Company in writing by such Underwriter through you expressly for use therein.
(b) The Underwriter agrees to
indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, or the Prospectus or any amendment or supplement thereto.
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(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Underwriter, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the 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 the second and third sentences of this paragraph, 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 prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of any indemnified party.
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(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on
the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(d) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause 8(d) above but also the relative fault of the Company on the one hand and of the Underwriter on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Shares (before deducting expenses but after deducting underwriting discounts and commissions) received by the Company and the total underwriting discounts and commissions received by the Underwriter bear to
the aggregate initial public offering price of the Shares set forth in the Prospectus. The relative fault of the Company on the one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriter and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. .
(e) The Company and the Underwriter agree that it would
not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriter were treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, 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, the
Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public 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 remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
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(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriter, any person controlling the Underwriter or any affiliate of the Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
9. Termination. The Underwriter may terminate this Agreement by notice given by you to the Company, if after
the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global
Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade or other relevant exchanges, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States or other relevant jurisdiction shall
have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the
offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriter with respect to themselves for all reasonable out-of-pocket expenses (including the reasonably incurred fees and disbursements of their counsel) incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder. If this agreement is terminated by reason of the default of the Underwriter, the Company shall not be obligated to reimburse the Underwriter for any such expenses.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Underwriter with respect to the preparation of any preliminary prospectus, the Time of
Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
24
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriter has acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriter owes the Company only those duties and obligations set forth in this Agreement and prior
written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriter may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriter arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
12.
Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New
York.
14. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference
only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing
and effective only upon receipt and if to the Underwriter shall be delivered, mailed or sent to you at the address set forth in Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set forth in Schedule I
hereto.
[Signature Page Follows]
25
|
|
|
| Very truly yours,
Fairmount Santrol Holdings Inc. |
|
|
| By: |
|
/s/ David J. Crandall |
|
|
Name: David J. Crandall |
|
|
Title: SVP, General Counsel and Secretary |
|
|
|
| Accepted as of the date hereof
Morgan Stanley & Co. LLC |
|
|
| By: |
|
/s/ Robert Shepardson |
|
|
Name: Robert Shepardson |
|
|
Title: Managing Director |
26
SCHEDULE I
|
|
|
| Underwriter: |
|
|
|
|
| Underwriter authorized to release lock-up under Section 6: |
|
Morgan Stanley & Co. LLC |
|
|
| Underwriter authorized to appoint counsel under Section 8(c): |
|
Morgan Stanley & Co. LLC |
|
|
| Registration Statement File No.: |
|
333-212360 |
|
|
| Time of Sale Prospectus |
|
1. Prospectus dated July 14, 2016 relating to the Shelf
Shares
2. Preliminary Prospectus dated June 30, 2016 relating to the Shelf
Shares
3. The preliminary prospectus supplement dated October 19, 2016 relating to
the Shares
4. Price to the Public: As to each investor, the price paid by such
investor. Number of Firm Shares: 30,250,000 |
|
|
| Lock-up Restricted Period: |
|
Period ending 60 days after the date of the Prospectus |
|
|
| Title of Shares to be purchased: |
|
Common Stock, par value $0.01 per share |
|
|
| Number of Firm Shares: |
|
30,250,000 |
|
|
| Number of Additional Shares |
|
4,537,500 |
|
|
| Purchase Price: |
|
$9.18 per share |
|
|
| Selling Concession: |
|
$0.10 per share |
|
|
| Closing Date and Time: |
|
October 25, 2016, 10:00 am New York City time |
|
|
| Closing Location: |
|
Latham & Watkins LLP 811 Main St.
Ste. 3700 Houston, TX 77002 |
I-1
|
|
|
| Address for Notices to Underwriter: |
|
Morgan Stanley & Co. LLC Attention:
Prospectus Department 180 Varick Street, 2nd floor
New York, NY 10014 |
|
|
| Address for Notices to the Company: |
|
Fairmount Santrol Holdings Inc. 8834 Mayfield
Road Chesterland, Ohio 44026 |
I-2
SCHEDULE II
|
|
|
|
|
| Underwriter |
|
Number of Firm Shares
To Be Purchased |
|
| Morgan Stanley & Co. LLC |
|
|
30,250,000 |
|
| Total: |
|
|
30,250,000 |
|
|
|
|
|
|
II-1
SCHEDULE III
SUBSIDIARIES
|
|
|
|
|
| Entity |
|
Jurisdiction
of Formation |
|
Jurisdictions of
Foreign Qualification |
| Fairmount Santrol Inc. |
|
Delaware |
|
Ohio, Texas |
|
|
|
| Technisand, Inc. |
|
Delaware |
|
Colorado, Ohio, Texas, Illinois, Michigan, Louisiana, Montana, Oklahoma, North Dakota and West Virginia |
|
|
|
| Wisconsin Industrial Sand Company, LLC |
|
Delaware |
|
Wisconsin |
|
|
|
| Wedron Silica Company |
|
Ohio |
|
Illinois and Colorado |
|
|
|
| FML Sand, LLC |
|
Ohio |
|
Missouri, Texas and Wisconsin |
II-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
, 20
Morgan Stanley & Co.
LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
The undersigned
understands that Morgan Stanley & Co. (“Morgan Stanley”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Fairmount Santrol Holdings Inc., a Delaware corporation (the
“Company”), providing for the public offering (the “Public Offering”) by Morgan Stanley & Co. LLC (the “Underwriter”), of 30,250,000 shares (the “Shares”) of the common
stock, par value $0.01 per share of the Company (the “Common Stock”).
To induce the Underwriter that may
participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley, it will not, during the period commencing on the date
hereof and ending 60 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in
Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the Shares to be sold under the Underwriting Agreement, (b) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of
Common Stock or other securities acquired in such open market transactions, (c) transfers of shares of Common Stock or any security convertible into Common Stock (i) to an immediate family member (defined as a person related to the
undersigned by any relationship by blood, marriage, domestic partnership or adoption no more remote than a first cousin) of the undersigned, (ii) by will, other testamentary document or intestate succession, or (iii) as a bona fide gift,
or (d) transfers
A-1
or distributions of shares of Common Stock or any security convertible into Common Stock to affiliates of the undersigned, including current or former partners, members, managers stockholders or
other principals (or to the estates of any of such persons) of the undersigned, or distributions or transfers of shares of Common Stock or any security convertible into Common Stock to a person or entity controlled by, controlling or under common
control or management with the undersigned or to the partners, members, managers, stockholders or other principals of such person or entity (or to the estates of any of such persons); provided that in the case of any transfer or distribution
pursuant to clause (c) or (d), (i) each donee, distributee or other transferee shall sign and deliver a lock-up letter substantially in the form of this letter 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 Restricted Period (other than a Form 5 made when required or to the extent any
such filing under Section 16(a) of the Exchange Act indicates that such transfer or distribution did not involve a disposition for value), (e) transfers to the Company of shares of Common Stock or any security convertible into or
exercisable for Common Stock in connection with (i) the termination of service of an employee or other service provider pursuant to agreements that provide the Company with an option to repurchase such shares, or (ii) agreements that
provide the Company with a right of first refusal with respect to transfers of such shares, provided that, in each case, 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 Restricted Period (other than a Form 5 made when required or to the extent any such filing under Section 16(a) of the Exchange Act indicates that such transfer or distribution did
not involve a disposition for value), (f) shares of Common Stock or any security convertible into Common Stock withheld (or sold to) to the Company in connection with the exercise or vesting, as applicable, of options, warrants or other
outstanding equity awards granted pursuant to the Company’s stock option/incentive plans or otherwise outstanding on the date hereof and disclosed in the prospectus or the exercise of such options or warrants on a “cashless” basis,
including any such transfer for the purpose of satisfying any tax or other governmental withholding obligation; provided that (i) for any options that expire during the Restricted Period and in which case the Company is unable to
transfer shares for the purposes of satisfying any tax or other governmental withholding obligation, the restrictions contained in this Lock-Up Letter shall not apply to shares sold for that purpose, and (ii) with the exception of share
withholding or other transfers occurring pursuant to instructions delivered in advance of the date hereof or pursuant to the terms of equity plans or agreements, 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 Restricted Period (other than a Form 5 made when required or to the extent any such filing under Section 16(a) of the Exchange Act
indicates that such transfer or distribution did not involve a disposition for value), (g) the exercise of warrants or the exercise of stock options granted pursuant to the Company’s stock option/incentive plans or otherwise outstanding on
the date hereof; provided that the restrictions contained in this Lock-up Letter shall apply to the shares of Common Stock issued upon such exercise or conversion, (h) the transfer of shares of Common Stock or any security convertible
into Common Stock that occurs by operation of law or by order of a court of competent
A-2
jurisdiction pursuant to a qualified domestic order or in connection with a divorce settlement, provided
that (i) 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 Restricted Period (other than a Form 5 made when
required or to the extent any such filing under Section 16(a) of the Exchange Act indicates that such transfer or distribution did not involve a disposition for value) and (ii) any such receiving party shall, upon transfer of the Common
Stock, agree to be bound by the terms of this Lock-Up Letter to the same extent as if the receiving party were a party hereto, (i) in the event of undue hardship, any transfer of shares after notice to, and with the prior written consent (not
to be unreasonably withheld) of Morgan Stanley, (j) any demands or requests for, the exercise of any right with respect to, or the taking of any action in preparation for, the registration by the Company under the Securities Act of 1933, as
amended (the “Securities Act”) of the undersigned’s shares of Common Stock; provided that (i) 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 Restricted Period and (ii) no public announcement of the demand or request shall be made prior to the
expiration of the Restricted Period, (k) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such
plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or
the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriter.
This letter agreement shall be governed by the laws of the State of New York.
This letter agreement shall lapse and become null and void upon the earlier to occur, if any, of (i) the date upon which the Company
provides Morgan Stanley with written notice that it does not intend to proceed with the Public Offering, provided that such written notice is delivered prior to the execution of the Underwriting Agreement and (ii) the date the Company files an
application to withdraw the registration statement related to the offering, (iii) the date upon which the Underwriting Agreement (other than
A-3
the provisions thereof which survive termination) is terminated, provided that such termination occurs prior to payment for and delivery of the Common Stock, and (iv) November 19, 2016
if the Public Offering has not been completed and the Underwriting Agreement has not been executed by such date.
[Signature Page Follows]
A-4
IN WITNESS WHEREOF, the undersigned has executed this letter agreement effective as of the date
first set forth above.
|
| Very truly yours, |
| |
| (Name) |
| |
| (Address) |
A-5
