Exhibit 1.1
Option Care Health, Inc.
15,000,000 Shares of Common Stock, par value $0.0001
per share
Underwriting Agreement
June 8, 2021
Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Ladies and Gentlemen:
HC Group Holdings I, LLC (the
“Selling Stockholder”), a stockholder of Option Care Health, Inc., a Delaware corporation (the “Company”), proposes
to sell to the underwriters set forth on Schedule 1 hereto (the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 12 hereof, and to the extent there is only a single underwriter, the term “Underwriters”
shall be deemed to refer to the single Underwriter, mutatis mutandis), an aggregate of 15,000,000 shares of common stock, par value
$0.0001 per share, of the Company (the “Underwritten Shares”). In addition, the Selling Stockholder proposes to sell up to
an additional 2,250,000 shares of common stock (the “Option Shares”). The Underwritten Shares and the Option Shares are herein
referred to as the “Shares”. The shares of common stock of the Company to be outstanding after giving effect to the sale of
the Shares are referred to herein as the “Stock.”
Each of the Company and the
Selling Stockholder hereby confirms their agreement with the Underwriters concerning the purchase and sale of the Shares as follows:
1. Registration
Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the
“Securities Act”), a registration statement (File No. 333-239504), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Base
Prospectus” means the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430
Information, the term “Preliminary Prospectus” means any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act, and the term “Prospectus” means the prospectus in the form first used (or made available upon
request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Shares. If the
Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. Any reference in this underwriting agreement (this “Agreement”) to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date
of the Registration Statement or the date of such Base Prospectus, Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable
Time (as defined below), the Company had prepared the following information (collectively with the pricing information set forth on Annex
A, the “Pricing Disclosure Package”): the Base Prospectus, as amended and supplemented immediately prior to the Applicable
Time, and any “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time”
means 7:00 P.M., New York City time, on June 8, 2021.
2. Purchase
of the Shares. (a) The Selling Stockholder agrees to sell the Underwritten Shares to the Underwriters as provided in this Agreement,
and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase, at a price per share of $19.559 (the “Purchase Price”), from
the Selling Stockholder the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto.
In addition, the Selling Stockholder
agrees to sell the Option Shares to the Underwriters as provided in this Agreement, and the Underwriters, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option to purchase from the
Selling Stockholder at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and
payable on the Underwritten Shares but not payable on the Option Shares.
The Underwriters may purchase
Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus,
by written notice from Goldman Sachs & Co. LLC (“Goldman Sachs”) to the Selling Stockholder. Such notice shall set forth
the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be
delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and
date are postponed in accordance with the provisions of Section 12 hereof). Any such notice shall be given at least two business days
prior to the date and time of delivery specified therein.
(b) The
Company and the Selling Stockholder understand that the Underwriters intend to make a public offering of the Shares as soon after the
effectiveness of this Agreement as in the judgment of the Underwriters is advisable, and initially to offer the Shares on the terms set
forth in the Pricing Disclosure Package. The Company and the Selling Stockholder acknowledge and agree that the Underwriters may offer
and sell Shares to or through any of their respective affiliates; provided that any such offers and sales by an affiliate of the Underwriters
will be subject to the terms and conditions of this Agreement.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to the accounts specified by the Selling Stockholder to Goldman
Sachs, at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022, or remotely by exchange of documents and signatures
(or their electronic counterparts), at 10:00 A.M., New York City time, on June 10, 2021, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter, as the Underwriters and the Selling Stockholder may agree upon in writing
or, in the case of the Option Shares, on the date and at the time and place specified in the written notice of the Underwriters’
purchase of the Option Shares. The time and date of such payment for the Shares is referred to herein as the “Closing Date”
and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional
Closing Date.”
Payment for the
Shares to be purchased on the Closing Date or the Additional Closing Date, as the case may be, shall be made against delivery to the Underwriters
of the Shares to be purchased on the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes payable
in connection with the sale of such Shares duly paid by the Selling Stockholder. Delivery of the Shares shall be made through the facilities
of The Depository Trust Company (“DTC”) unless the Underwriters shall otherwise instruct. Instructions to the transfer agent
for the delivery of the Shares will be made available for inspection by the Underwriters not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date or the Additional Closing Date, as the case may be.
(d) Each
of the Company and the Selling Stockholder acknowledge and agree that the Underwriters are acting solely in the capacity of an
arm’s length contractual counterparty to the Company and the Selling Stockholder with respect to the offering of Shares
contemplated hereby (including in connection with determining the terms of the offering), which does not constitute a
recommendation, investment advice or solicitation of any action by the Underwriters. The Underwriters are not acting as a financial
advisor or a fiduciary to, or an agent of, the Company, the Selling Stockholder or any other entity or person. Additionally, the
Underwriters are not advising the Company or any other entity or person as to any legal, tax, investment, accounting, financial or
regulatory matters in any jurisdiction and none of the activities of the Underwriters in connection with the transactions
contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriters with respect
to any entity or natural person. The Company and the Selling Stockholder shall consult with their own advisors concerning such
matters and each shall be responsible for making their own independent investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall not have any responsibility or liability to the Company or the Selling Stockholder with respect
thereto, except as expressly set forth in this Agreement. Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company or the Selling Stockholder.
3. Representations
and Warranties of the Company. The Company represents and warrants to each Underwriter and the Selling Stockholder that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, if any, included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects
with the Securities Act, and no Preliminary Prospectus, if any, at the time of filing thereof, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in Section 9(c) hereof, or the Selling Stockholder Information (as defined
below).
(b) Pricing
Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished by the Underwriters consists of the information described
as such in Section 9(c) hereof, or the Selling Stockholder Information.
(c) Issuer
Free Writing Prospectus. Other than the Registration Statement, the Base Prospectus, the Preliminary Prospectus, if any,
and the Prospectus, the Company (including its agents and representatives, other than the Underwriters in their capacity as such)
have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to
any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Shares (each such communication by the Company or its agents and representatives (other than a
communication referred to in clause (h) below) an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the
documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by
the Underwriters. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or
will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby)
and does not conflict with the information contained in the Registration Statement or the Pricing Disclosure Package, and, when
taken together with the Pricing Disclosure Package accompanying, or delivered prior to delivery of, such Issuer Free Writing
Prospectus, did not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that the Company makes no representation
or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus or the Pricing Disclosure
Package in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use in such Issuer Free Writing Prospectus or the Pricing Disclosure Package, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(c)
hereof, or the Selling Stockholder Information.
(d) Registration
Statement and Prospectus. The Registration Statement has been declared effective by the Commission. No order suspending the effectiveness
of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities
Act against the Company or related to the offering of the Shares has been initiated or, to the knowledge of the Company, threatened by
the Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration
Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not
and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and,
as of the Closing Date and as of the Additional Closing Date, as the case may be, the Prospectus complied and will comply in all material
respects with the Securities Act, and will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in Section 9(c) hereof, or the Selling Stockholder Information.
(e) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package,
when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such
documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference
in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(f) Financial
Statements. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly in all material respects
the financial position of the Company and its consolidated subsidiaries, as applicable, as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with
generally accepted accounting principles (“GAAP”) in the United States applied on a consistent basis throughout the periods
covered thereby (except in the case of unaudited financial statements, which are subject to normal year-end adjustments and do not contain
certain footnotes as permitted by the applicable rules of the Commission), and any supporting schedules included or incorporated by reference
in the Registration Statement present fairly in all material respects the information required to be stated therein; and the other financial
information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if
any, has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material
respects the information shown thereby.
(g) No
Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any material
change in the capital stock (other than the issuance of shares of common stock in connection with any equity awards under equity
incentive plans described in the Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term debt or
long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock or membership interests, as applicable (other than any tax
distributions made by the Company in the ordinary course of business), or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the business, properties, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a whole; (ii) none of the Company or any of its
subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to
the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and (iii) none of the Company or any of its subsidiaries has sustained any loss
or interference with its business that is material to the Company and its subsidiaries taken as a whole and that is either from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any
action, order or decree of any court or arbitrator or governmental or regulatory authority, except in the case of each of the
foregoing clauses (i), (ii) or (iii) as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(h) Organization
and Good Standing. The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing
under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction
in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and
have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business, properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company of
its obligations under this Agreement (a “Material Adverse Effect”). The subsidiaries listed in Annex D hereto are the only
significant subsidiaries of the Company.
(i) Capitalization. The
Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus
under the heading “Capitalization”; all the outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except as described
in or expressly contemplated by the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no outstanding
rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interest in the Company or any
such subsidiary, any such convertible or exchangeable securities or any such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and
the Prospectus; and all the outstanding shares of capital stock or other equity interests of each subsidiary owned, directly or indirectly,
by 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 any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim
of any third party, except, in each case, where such failure would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(j) Due
Authorization. The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations
hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and
the consummation by it of the transactions contemplated hereby has been duly and validly taken.
(k) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(l) The
Shares. The Shares to be sold by the Selling Stockholder hereunder have been duly authorized by the Company and are duly and
validly issued, fully paid and non-assessable and will conform, in all material respects, to the descriptions thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(m) Description
of the Underwriting Agreement. This Agreement conforms in all material respects to the description thereof contained in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(n) No
Violation or Default. None of the Company or any of its subsidiaries are (i) in violation of their respective charters or
by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries are a party or by which
the Company or any of its subsidiaries are bound or to which any property or asset of the Company or any of its subsidiaries are subject;
or (iii) in violation of any law or statute or any judgment, order, rule or regulation applicable to the Company or any of its subsidiaries
of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, except,
in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(o) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of
the transactions contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus, will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries
are a party or by which the Company or any of its subsidiaries are bound or to which any property or assets of the Company or any of
its subsidiaries are subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational
documents of the Company or any of its subsidiaries, or (iii) result in the violation of any law or statute or any judgment, order,
rule or regulation applicable to the Company or any of its subsidiaries of any court or arbitrator or governmental or regulatory
authority having jurisdiction over the Company or any of its subsidiaries, except, in the case of clauses (i) and (iii) above, for
any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(p) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement and the
consummation of the transactions contemplated by this Agreement, except (i) where the failure to obtain any such consent, approval, authorization,
order, registration or qualification would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect
and (ii) for the registration of the Shares under the Securities Act and (iii) such consents, approvals, authorizations, orders and registrations
or qualifications as may be required by the Exchange (as defined below) or Financial Industry Regulatory Authority, Inc. (“FINRA”)
and under applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(q) Legal
Proceedings. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are
no legal, governmental or regulatory investigations, actions, suits or proceedings (“Actions”) pending to which the Company
or any of its subsidiaries are or may be a party or to which any property of the Company or any of its subsidiaries are or may be the
subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, would reasonably be
expected to have a Material Adverse Effect; to the knowledge of the Company, no such Actions are threatened or contemplated by any governmental
or regulatory authority or threatened by others; and (i) there are no current or pending Actions that are required under the Securities
Act to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents
that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(r) Independent
Accountants. KPMG LLP, who has certified certain financial statements of the Company and its consolidated subsidiaries, is an independent
registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted
by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(s) Title
to Real and Personal Property. The Company and its subsidiaries have good and marketable title in fee simple to, or have
valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of
the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of
title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company
and its subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect.
(t) Intellectual
Property. The Company and its subsidiaries own or have the right to use all patents, trademarks, service marks, trade names,
trademark registrations, service mark registrations, domain names and other source indicators, copyrights and copyrightable works, know-how,
trade secrets, systems, procedures, proprietary or confidential information and all other worldwide intellectual property, industrial
property and proprietary rights (collectively, “Intellectual Property”) used in the conduct of their respective businesses
as currently conducted and as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where
such failure to own or possess such rights would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The Company and its subsidiaries have not received any written notice of any claim that the Company or any of its subsidiaries,
or the conduct of their respective businesses infringes, misappropriates, dilutes or otherwise violates any Intellectual Property of any
person, which claim, if determined adversely to the Company, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. To the knowledge of the Company, the material Intellectual Property of the Company and its subsidiaries is not being infringed,
misappropriated or otherwise violated by any person.
(u) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries,
on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described
in such documents and in the Pricing Disclosure Package.
(v) Investment
Company Act. The Company is not required to register as an “investment company” within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company
Act”).
(w) Taxes. The
Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all income tax returns required to be
paid or filed through the date hereof, except for any taxes which are being contested in good faith and by appropriate proceedings
and with respect to which adequate reserves are being maintained in accordance with GAAP or where the failure to pay or file would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as otherwise disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no tax deficiency that has been or, to
the knowledge of the Company, is reasonably expected to be asserted against the Company or any of its subsidiaries or any of their
respective properties or assets, except where such tax deficiency would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(x) Licenses
and Permits. The Company and its subsidiaries possess all licenses, certificates, permits, approvals, provider or supplier numbers,
accreditation, clearances, exemptions and other authorizations issued by, and have made all declarations, registrations, reports and filings
(collectively, “Permits”) with, the appropriate federal, state, local or foreign governmental or regulatory authorities having
jurisdiction over such matters (“Governmental Authority”) that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and except as (i) described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (x) none of the Company
or any of its subsidiaries is in violation of, or in default under, any such Permit or has received any notice of proceedings relating
to the revocation or modification of, or non-compliance with, any such Permit, and (y) the Company and its subsidiaries have fulfilled
and performed all of their material obligations with respect to such Permits, and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder
of any such Permit. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (x)
each Permit issued to the Company, any subsidiary, or, to the knowledge of the Company, any licensed employee of the Company or any subsidiary
that provides healthcare items or services (each, a “Licensed Provider”), is valid and in full force and effect, and (y) each
patient service center, facility, clinic, or location owned, operated or managed by the Company or any subsidiary from which healthcare
items or services are provided (each, a “Center”) and, to the knowledge of the Company, each Licensed Provider, is in compliance
with the terms and conditions of all such Permits.
(y) No
Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by,
or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would
not reasonably be expected to have a Material Adverse Effect.
(z) Certain
Environmental Matters. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, (i) the Company and its subsidiaries (x) are in compliance with all, and have not violated any, applicable federal, state,
local and foreign laws, rules and regulations relating to pollution or the protection of human health or safety, the environment,
natural resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”); (y) have received and are in compliance with all, and have not violated any, permits, licenses, certificates or other
authorizations or approvals required of them under any Environmental Laws to conduct their respective businesses; and (z) have not
received written notice of any actual or potential liability under or relating to, or actual or potential violation of, any
Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in
any such notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its
subsidiaries; and (iii) except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (x)
there is no proceeding that is pending, or that is known to be contemplated, against the Company or any of its subsidiaries under
any Environmental Laws in which a governmental entity is also a party, other than such proceeding regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not aware of any facts
or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on
the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the Company and its
subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(aa) Compliance
with ERISA. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)
that is maintained or sponsored by the Company (each, a “Benefit Plan”) has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Benefit Plan, excluding
transactions to which a statutory or administrative exemption applies; (iii) no Benefit Plan is a “pension plan” (as defined
in Section 3(2) of ERISA) that is subject to the provisions of Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code (each,
a “Pension Plan”); (iv) each Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified,
and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification;
(v) the Company has not incurred any liability under Title IV of ERISA in respect of a Pension Plan (including a “multiemployer
plan” within the meaning of Section 4001(a)(3) of ERISA); and (vi) none of the following events has occurred or is reasonably likely
to occur: (A) a material increase in the aggregate amount of contributions required to be made to all Benefit Plans by the Company in
the current fiscal year of the Company compared to the amount of such contributions made in the Company’s most recently completed
fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated post-retirement benefit obligations”
(within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount of such obligations in the Company and its
subsidiaries’ most recently completed fiscal year.
(bb) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management
as appropriate to allow timely decisions regarding required disclosure.
(cc) Accounting
Controls. The Company and its subsidiaries have established systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act that are applicable to the Company
and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP. The Company and its subsidiaries maintain internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement, the Prospectus and the Pricing Disclosure Package fairly presents the information called for in all material
respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the Company’s internal
controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all
significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely
affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information;
and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal controls over financial reporting.
(dd) eXtensible
Business Reporting Language. 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.
(ee) Insurance. The
Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate, in the
judgment of the Company, to protect the Company and their respective subsidiaries and their respective businesses; and none of the
Company or any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or
other expenditures are required or necessary to be made in order to continue such insurance or (ii) 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 at
reasonable cost from similar insurers as may be necessary to continue its business.
(ff) No
Unlawful Payments. None of the Company or any of its subsidiaries, nor any director, officer or employee of the Company or any
of its subsidiaries nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of
the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or
indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any 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; (iii) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the
United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act
in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any unlawful rebate, payoff, influence
payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce,
and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery
and anti-corruption laws.
(gg) Compliance
with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any
of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency having jurisdiction over the Company or any of its subsidiaries (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 knowledge of the Company, threatened.
(hh) No
Conflicts with Sanctions Laws. None of the Company or any of its subsidiaries, directors, officers or employees, or, to the
knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its
subsidiaries are currently the subject or the target of any sanctions administered or enforced by the U.S. government (including,
without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S.
Department of State and including, without limitation, the designation as a “specially designated national” or
“blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s
Treasury (“HMT”) or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or
any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions,
including, without limitation, Cuba, Iran, North Korea, Syria and Crimea (each, a “Sanctioned Country”); and the Company
will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to
fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a
violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or
otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not now
knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the
subject or the target of Sanctions or with any Sanctioned Country.
(ii) No
Restrictions on Subsidiaries. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a
party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock
or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(jj) No
Broker’s Fees. None of the Company or any of its subsidiaries are a party to any contract, agreement or understanding with
any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of the Shares.
(kk) No
Registration Rights. Except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus
or otherwise previously waived, no person has the right to require the Company or any of its subsidiaries to register any securities for
sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or, to the knowledge of the Company,
the sale of the Shares to be sold by the Selling Stockholder hereunder.
(ll) No
Stabilization. The Company has not taken, directly or indirectly (other than through one or more of the Underwriters), any
action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Shares.
(mm) [Reserved].
(nn) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) included or incorporated by reference in any of the Registration Statement, the Pricing Disclosure Package or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(oo) Statistical
and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical
and market-related data included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus
is not based on or derived from sources that are reliable and accurate in all material respects.
(pp) Sarbanes-Oxley
Act. The Company is in compliance in all material respects with all provisions of the Sarbanes-Oxley Act of 2002, as amended and the
rules and regulations promulgated thereunder or has implemented the provisions thereof (the “Sarbanes-Oxley Act”) that are
in effect and with which the Company is required to comply as of the date hereof.
(qq) Status
under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest
time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405 under the Securities Act.
(rr) Cyber Security; Data Protection. The
Company’s and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are reasonably believed by the Company to
be adequate for, and operate and perform in all material respects as required in connection with the operation of the business of
the Company and its subsidiaries as currently conducted and are free and clear of all material bugs, errors, defects, Trojan horses,
time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable,
sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have
been no material breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied
without material cost or liability or the duty to notify any other person, nor any material incidents under internal review or
investigations relating to the same. The Company and its subsidiaries are presently in compliance with all applicable laws or
statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the
protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification (“Data
Protection Requirements”), in each case, except for such failures as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. To ensure compliance with the Data Protection Requirements, the Company and its
subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material
respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling, and analysis of Personal Data (the “Policies”). The Company and its subsidiaries have at all times made all
disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures
made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and
regulatory rules or requirements in any material respect. The Company further certifies that neither it nor any subsidiary: (i) has
received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Data
Protection Requirements, and has no knowledge of any event or condition that would reasonably be expected to result in any such
notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action
pursuant to any Data Protection Requirement; or (iii) is a party to any order, decree, or agreement that imposes any obligation or
liability by any governmental authority under any Data Protection Requirement, in each case except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(ss) Healthcare
Regulatory Matters. Except as (i) otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the
Company and each subsidiary is in compliance with all Healthcare Laws (as defined below) applicable to the business of the Company,
relating to the compounding, development, manufacturing, labeling, advertising, promotion, storage and distribution of drug products
and medical devices, or the operation or management of home and outpatient infusion centers, pharmacy, patient healthcare
information, patient abuse, and the quality and adequacy of infusion or other medical care, including without limitation: (a)
federal and state fraud and abuse laws, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C.
§1320a-7b(b)), the Stark Law (42 U.S.C. §1395nn), the Civil False Claims Act (31 U.S.C. §3729 et seq.), the
administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the civil monetary penalty laws (42 U.S.C. § 1320a-7a), the
exclusion laws (42 U.S.C. § 1320a-7), and any similar state laws or regulations, (b) 42 U.S.C. §§ 1395-1395lll (the
Medicare Act), (c) Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396w-5 (the Medicaid Act), (d) the U.S. Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”) and all regulations promulgated thereto, (e) the Food,
Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), (f) the Public Health Service Act (42 U.S.C. § 201 et. seq.), (g) the
Controlled Substances Act (21 U.S.C. § 801 et seq.), and any comparable healthcare laws, regulations each of (a) through (g) as
may be amended from time to time, and the regulations promulgated thereto (collectively, “Healthcare Laws”). Neither the
Company nor any subsidiary is subject to material civil penalties, or mandatory or permissive exclusion from any state or federal
healthcare program, including Medicare, Medicaid, TRICARE, CHAMPVA, any state health plan adopted pursuant to Title XIX of the
Social Security Act (collectively, “Governmental Program”). Without limiting the generality of the foregoing, neither
the Company or any subsidiary has received written notice by a Governmental Authority of any material violation (or of any action,
litigation, arbitration, claim, demand, investigation, audit, charge, or formal inquiry (“Proceeding”) involving
allegations of any material violation) of any applicable Healthcare Laws, and no such Proceeding involving such allegations of any
such material violation is, to the knowledge of the Company, threatened in writing or contemplated, except where such Proceeding
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. For the past three (3) years
the Company, its subsidiaries, its respective officers, directors, and employees, and, to the knowledge of the Company, its Licensed
Providers, are not and have not been, excluded, debarred, suspended or otherwise ineligible to participate in any Governmental
Program, and no such action is pending or, to the knowledge of the Company, threatened in writing. Neither the Company or any of its
subsidiaries: (i) is a party to or has any reporting obligations under a corporate integrity agreement, deferred or non-prosecution
agreement, monitoring agreement, consent decree, settlement order, or any similar agreement with any Governmental Authority; or (ii)
has made any submissions pursuant to the Office of Inspector General’s Self Disclosure Protocol or Centers for Medicare and
Medicaid Services’ Self-Reporting Disclosure Protocol.
(tt) Participation
in Government and Third Party Payor Programs. Each of the Company and its subsidiaries, as applicable, is qualified (to the
extent such qualification is required by applicable Healthcare Laws, Governmental Program, or other third party payor or health
plan, whether private or commercial (collectively, the “Programs”)) for participation in all Programs from which the
Company or any subsidiary seeks or receives reimbursement for services applicable to the business of the Company, has a current and
valid payor agreement (to the extent available from or required by the Program to seek or receive reimbursement in the Program), is
in good standing with respect to each such Program, and is in compliance with the conditions of participation or coverage of all
such Programs and the terms of all such applicable payor agreements and all applicable Healthcare Laws, in each case, except for
such non-compliance as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Each of the Company and its subsidiaries, as applicable, has filed timely and accurately all claims and other reports required to be
filed in connection with all Programs and all such claims and reports are true and correct, except in each case, where any failure
to timely or accurately file would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Except for routine or immaterial post-payment reviews or audits in the ordinary course of business, for the past three (3) years,
neither the Company nor any of its subsidiaries has received written notice from any of the Programs of any Proceedings, demands,
hearings, or audits, with respect to any of the claims filed by the Company or any subsidiary for reimbursement or with respect to
any material compliance matters, investigations or surveys. Except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (x) each of the Company and its subsidiaries has paid, resolved or appealed (or the
applicable Program has recouped) all known and undisputed refunds, overpayments, discounts or adjustments that have become due with
respect to such claims and reports, and has not knowingly received and retained reimbursements from any Programs in excess of the
amounts permitted by applicable payor agreements and Healthcare Laws, and (y) except for routine or immaterial post-payment reviews
or audits in the ordinary course of business, no Program has requested or threatened any recoupment, refund or offset from any
client of the Company or any subsidiary that has not timely been appealed, repaid, resolved or recouped. There are no Program
recoupments being sought, requested or claimed or, to the knowledge of the Company, threatened against the Company or any of its
subsidiaries in excess of $250,000.
(uu) Product
Manufacturing. The manufacture (including compounding) of the Company’s products, whether by or on behalf of the Company
or any of its subsidiaries (“Company Products”), is being conducted in compliance with all applicable Healthcare Laws,
except where such failure to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. For the past three years, neither the Company nor any of its subsidiaries has had any product or manufacturing site or
compounding pharmacy (whether Company-owned or that of a contract manufacturer for the Company’s products) subject to a
Governmental Authority shutdown or import or export prohibition, nor received any United States Food and Drug Administration
(“FDA”) Form-483 or other Governmental Authority notice of inspectional observations, “warning letters,”
“untitled letters,” requests to make changes to the Company Products, processes or operations, or written notice from
the FDA or other Governmental Authority alleging or asserting noncompliance with any applicable Healthcare Laws, in each case except
as would not, whether individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the
Company’s knowledge, neither the FDA nor any other Governmental Authority is considering such action, except where such an
action could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(vv) Safety
Notices. Except as would not, whether individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, there have been no material recalls, field notifications, field corrections, market withdrawals or replacements, warnings,
“dear doctor” letters, investigator notices, safety alerts or other written notice of action relating to an alleged lack
of safety, efficacy, or regulatory compliance of the Company Products (collectively, “Safety Notices”). To the
Company’s knowledge, there are no material written complaints with respect to the Company Products that are currently
unresolved. To the Company’s knowledge, there are no facts that would be reasonably likely to result in (i) a material Safety
Notice with respect to the Company Products, (ii) a material change in labeling of any the Company Products, or (iii) a material
termination or suspension of marketing or testing of any of the Company Products.
4. Representations
and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to each Underwriter and the Company that:
(a) Required
Consents; Authority. No consent, approval, authorization, order, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling
Stockholder of this Agreement and for the sale and delivery of the Shares to be sold by the Selling Stockholder hereunder, except
(i) where the failure to obtain any such consent, approval, authorization, order, registration or qualification would not
reasonably be expected, individually or in the aggregate, to have a material adverse effect on the Selling Stockholder’s
ability to perform its obligations under this Agreement, (ii) for the registration of such Shares under the Securities Act and
(iii) such consents, approvals, authorizations, orders and registrations or qualifications as may be required by the Exchange
(as defined below) or FINRA and under applicable state securities laws in connection with the purchase and distribution of such
Shares by the Underwriters; and the Selling Stockholder has full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder; this Agreement has been duly
authorized, executed and delivered by the Selling Stockholder.
(b) No
Conflicts. The execution, delivery and performance by the Selling Stockholder of this Agreement, the sale of the Shares to be sold
by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herein or therein will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result
in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any
property, right or asset of the Selling Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property,
right or asset of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or
similar organizational documents of the Selling Stockholder (to the extent applicable) or (iii) result in the violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction
over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default,
lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect
on the Selling Stockholder’s ability to perform its obligations under this Agreement.
(c) Title
to Shares. The Selling Stockholder will have immediately prior to the Closing Date good and valid title to the Shares to be
sold at the Closing Date by the Selling Stockholder, free and clear of all liens, encumbrances, equities or adverse claims; and, upon
delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances,
equities or adverse claims, will pass to each Underwriter.
(d) No
Stabilization. The Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(e) Pricing
Disclosure Package. To the extent that any statements or omissions made in the Pricing Disclosure Package or any amendment or
supplement thereto are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder
expressly for use therein, the Pricing Disclosure Package, at the Applicable Time did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; it being understood and agreed that the only such information furnished by the Selling
Stockholder is the legal name and address of, and the number of shares beneficially owned and offered by, the Selling Stockholder,
and the other information with respect to such Selling Stockholder that appears under the caption “Principal and Selling
Stockholders” in the Registration Statement, the Pricing Disclosure Package and the Prospectus (collectively, the
“Selling Stockholder Information”).
(f) Issuer
Free Writing Prospectus and Written Testing-the-Waters Communication. Other than the Registration Statement, the Base
Prospectus, the Preliminary Prospectus, if any, and the Prospectus, the Selling Stockholder (including its agents and representatives,
other than the Underwriter in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication, other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under
the Securities Act or (ii) the documents listed on Annex A or Annex B hereto, each electronic road show and any other written communications
approved in writing in advance by the Company and the Underwriter.
(g) Registration
Statement and Prospectus. To the extent that any statements or omissions made in the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with information
furnished to the Company by the Selling Stockholder expressly for use therein, (i) as of the applicable effective date of the Registration
Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment did not and will
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, and (ii) as of the date of the Prospectus and any amendment or supplement thereto
and as of the Closing Date and as of the Additional Closing Date, as the case may be, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood and agreed that the only such information
furnished by the Selling Stockholder is the Selling Stockholder Information.
(h) Material
Information. As of the date hereof and as of the Closing Date, the sale of the Shares by the Selling Stockholder is not and will not
be prompted by any material information concerning the Company which is not set forth in the Registration Statement, the Pricing Disclosure
Package or the Prospectus.
(i) Lock-Up Agreement.
The Selling Stockholder has duly executed and delivered to you an agreement substantially in the form of Exhibit A hereto.
5. Further
Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b)
and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; the Company will file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the
Shares; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 5:00 P.M., New York City time, on the second business day succeeding the
date of this Agreement in such quantities as the Underwriters may reasonably request.
(b) Delivery
of Copies. The Company has furnished or will deliver, without charge, (i) to the Underwriters, conformed copies of the Registration
Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed
and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the
Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing
Prospectus) as the Underwriters may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period
of time after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating
to the Shares is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection
with sales of the Shares by any Underwriter or dealer.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether
before or after the time that the Registration Statement becomes effective, the Company will furnish to the Underwriters and counsel for
the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare,
use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to
which the Underwriters reasonably object.
(d) Notice
to the Underwriters. The Company will advise the Underwriters promptly, and confirm such advice in writing, (i) when the
Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes
effective; (iii) when any supplement to the Prospectus, or any Issuer Free Writing Prospectus or any Written Testing-the-Waters
Communication or any amendment to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for any additional information including,
but not limited to, any request for information concerning any Testing-the-Waters Communication; (v) of the issuance by the
Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus or any Written
Testing-the-Waters Communication or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (vi) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which
the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication
as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure
Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication is delivered to a purchaser, not
misleading; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares
for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use
their reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus or any Written
Testing-the-Waters Communication or suspending any such qualification of the Shares and, if any such order is issued, will obtain as
soon as practicable the withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist
as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with
law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with
the Commission and furnish to the Underwriters and to such dealers as the Underwriters may designate such amendments or supplements
to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so
that the statements in the Prospectus as so amended or supplemented (or any document to be filed with the Commission and
incorporated by reference therein) will not, in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any
event or development shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the
extent required) and furnish to the Underwriters and to such dealers as the Underwriters may designate, such amendments or
supplements to the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated by reference
therein) as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the
light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the
Pricing Disclosure Package will comply with law.
(f) Blue
Sky Compliance. The Company will qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Underwriters shall reasonably request and will continue such qualifications in effect so long as required for distribution of the
Shares; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent
to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning
Statement. The Company will make generally available (which may be satisfied by filing with the Commission’s Electronic
Data Gathering, Analysis, and Retrieval system (or any successor system) (“EDGAR”)) to its security holders and the Underwriters
as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after
the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear
Market. For a period of 60 days after the date of the Prospectus, the Company will not (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the Commission a registration
statement under the Securities Act relating to, any shares of Stock or any securities convertible into or exercisable or
exchangeable for Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition, submission or filing, or
(ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of
the Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Stock or such other securities, in cash or otherwise, without the prior written consent of Goldman Sachs, other than (A)
[reserved], (B) grants of options, shares of Stock and other awards to purchase or receive shares of Stock issued under any employee
benefit plan in effect on the date hereof or that is described in the Pricing Disclosure Package, (C) issuances of shares of Stock
upon the exercise or settlement of options or other awards granted under any employee benefit plan in effect on the date hereof or
that is described in the Pricing Disclosure Package, (D) the filing by the Company of any registration statement on Form S-8 (or any
successor form), (E) establishing a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Stock
(provided, that such plan does not provide for the transfer of Stock during the 60-day restricted period and no public
announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by
or on behalf of the Company), and (F) issuing shares of Stock in connection with any acquisitions, strategic investments or any
other transaction that includes a bona fide commercial relationship with the Company or any of its subsidiaries (including joint
ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) (provided
that (x) the aggregate number of shares of Stock issued pursuant to this clause (F) shall in no event exceed 5% of the total number
of shares of Stock outstanding as of the Closing Date and (y) each recipient of such Stock shall execute and deliver to the
Underwriters a letter substantially in the form of Exhibit A hereto).
(i) [Reserved].
(j) No
Stabilization. The Company will not take, directly or indirectly (other than through one or more of the Underwriters), any action
designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Stock.
(k) Exchange
Listing. The Shares are listed and admitted and authorized for trading on The NASDAQ Global Select Market (the “Exchange”).
(l) Reports. During
the Prospectus Delivery Period, the Company will furnish to the Underwriters, as soon as they are available, copies of all reports or
other communications (financial or other) furnished to holders of the Shares generally, and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the
Company will be deemed to have furnished such reports and financial statements to the Underwriters to the extent they are filed on EDGAR.
(m) Record
Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(n) Filings. The
Company will file with the Commission such reports as may be required by Rule 463 under the Securities Act.
(o) Certification
Regarding Beneficial Owners. The Company will deliver to Goldman Sachs, on the date of execution of this Agreement, a properly
completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation,
and the Company undertakes to provide such additional supporting documentation as Goldman Sachs may reasonably request in connection with
the verification of the foregoing certification.
6. Further
Agreements of the Selling Stockholder. The Selling Stockholder covenants and agrees with each Underwriter that:
(a) No
Stabilization. The Selling Stockholder will not take, directly or indirectly, any action designed to or that could reasonably
be expected to cause or result in any stabilization or manipulation of the price of the Stock.
(b) Tax
Form. It will deliver to the Underwriters prior to or at the Closing Date a properly completed and executed United States Internal
Revenue Service Form W-9 (or other applicable form, establishing that the Selling Stockholder is a United States person for U.S.
federal income tax purposes).
(c) Use
of Proceeds. It will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise
make available such proceeds to a subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject of target of Sanctions, (ii) to
fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
7. Certain
Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It
has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of, refer to
or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act
(which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into
the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference)
in the Pricing Disclosure Package or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed
on Annex A or prepared pursuant to Section 3(c) or Section 5(c) above (including any electronic road show), or (iii) any free writing
prospectus prepared by such underwriter and approved by the Company in advance in writing (each such free writing prospectus referred
to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It
has not used and will not use, in each case without the prior written consent of the Company, any free writing prospectus that contains
the final terms of the Shares unless such terms have previously been included in a free writing prospectus filed with the Commission.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify
the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
8. Conditions
of Underwriters’ Obligations. The obligation of each Underwriter to purchase the Underwritten Shares on the Closing Date
or the Option Shares on the Additional Closing Date, as the case may be, as provided herein is subject to the performance by the Company
and the Selling Stockholder of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus
and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer
Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and
all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) Representations
and Warranties. The respective representations and warranties of the Company and the Selling Stockholder contained herein shall
be true and correct on the date hereof and on and as of the Closing Date or the Additional Closing Date, as the case may be, (except to
the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall
be true and correct as of such other date); and the statements of the Company and its officers and the Selling Stockholder and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or the Additional
Closing Date, as the case may be, (except to the extent that such representations and warranties speak as of another date, in which case
such representations and warranties shall be true and correct as of such other date).
(c) No
Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist,
which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(d) Officer’s
Certificates. The Underwriters shall have received on and as of the Closing Date or the Additional Closing Date, as the
case may be, a (x) certificate of the chief executive officer, the chief financial officer or the chief accounting officer of the
Company (i) confirming that such officers have carefully reviewed the Registration Statement, the Pricing Disclosure Package and the
Prospectus and, to the knowledge of such officers, the applicable representations of the Company set forth in Sections 3(b) and 3(e)
hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true
and correct (except to the extent that such representations and warranties speak as of another date, in which case such
representations and warranties shall be true and correct as of such other date) and that the Company has complied in all material
respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the
Closing Date or the Additional Closing Date, as the case may be, and (iii) to the effect set forth in paragraphs (a) and (c) above,
and (y) a certificate from the Selling Stockholder, in form and substance reasonably satisfactory to the Underwriters,
(A) confirming that the representations of the Selling Stockholder set forth in Sections 4(e), 4(f) and 4(g) hereof are true
and correct and (B) confirming that the other representations and warranties of the Selling Stockholder in this Agreement are
true and correct and that the Selling Stockholder has complied in all material respects with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(e) Comfort
Letters. On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the case may be, KPMG LLP shall
have furnished to the Underwriters, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package
and the Prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall
use a “cut-off” date no more than three business days prior to the Closing Date or such Additional Closing Date, as the case
may be.
(f) Opinion
and 10b-5 Statement of Counsel for the Company. Kirkland & Ellis LLP, counsel for the Company, shall have furnished to Goldman
Sachs, at the request of the Company, its written opinion and 10b-5 statement, dated the Closing Date or the Additional Closing Date,
as the case may be, and addressed to Goldman Sachs, in form and substance reasonably satisfactory to the Underwriters.
(g) Opinion
of Counsel for the Selling Stockholder. Kirkland & Ellis LLP, counsel for the Selling Stockholder, shall have furnished to
Goldman Sachs, at the request of the Selling Stockholder, their written opinion, dated the Closing Date or the Additional Closing Date,
as the case may be, and addressed to Goldman Sachs, in form and substance reasonably satisfactory to the Underwriters.
(h) Opinion
and 10b-5 Statement of Counsel for the Underwriters. The Underwriters shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, an opinion and 10b-5 statement of Latham & Watkins LLP, counsel for the Underwriters,
with respect to such matters as the Underwriters may reasonably request, and such counsel shall have received such documents and information
as they may reasonably request to enable them to pass upon such matters.
(i) No
Legal Impediment to Sale. No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional
Closing Date, as the case may be, prevent the sale of the Shares by the Selling Stockholder; and no injunction or order of any federal,
state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent
the sale of the Shares by the Selling Stockholder.
(j) Good
Standing. The Underwriters shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, satisfactory
evidence of the good standing of the Company in its jurisdiction of organization and its good standing in such other jurisdictions as
the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental
authorities of such jurisdictions.
(k) [Reserved].
(l) Lock-up
Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders
of the Company listed in Annex C hereto relating to sales and certain other dispositions of shares of Stock or certain other securities,
delivered to you on or before the date hereof, shall be full force and effect on the Closing Date or the Additional Closing Date, as the
case may be.
(m) Additional
Documents. On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company and the Selling Stockholder
shall have furnished to the Underwriters such further certificates and documents as the Underwriters may reasonably request.
All opinions, letters, certificates
and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they
are in form and substance reasonably satisfactory to counsel for the Underwriters.
9. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters by the Company. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading
or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, any Written Testing-the-Waters Communication, any road show as defined in Rule 433(h) under
the Securities Act (a “road show”) or the Pricing Disclosure Package, or caused by any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in
subsection (c) below.
(b) Indemnification
of the Underwriters by the Selling Stockholder. The Selling Stockholder agrees to indemnify and hold harmless each Underwriter,
the Company and their respective affiliates, directors and officers and each person, if any, who controls any such Underwriter or the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of,
or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained
in the Prospectus (or any amendment or supplement thereto) or the Pricing Disclosure Package, or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, the Prospectus (or any amendment or supplement thereto) or the Pricing Disclosure
Package, in reliance upon and in conformity with the Selling Stockholder Information provided by such Selling Stockholder; provided that
the liability of the Selling Stockholder under this paragraph shall in no event exceed an amount equal to the net proceeds (exclusive
of expenses) received by the Selling Stockholder from the Shares sold by the Selling Stockholder pursuant to this Agreement.
(c) Indemnification
of the Company and the Selling Stockholder. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, their officers who signed the Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the Selling Stockholder to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with
any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Underwriter expressly
for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any
Written Testing-the-Waters Communication, any road show or the Pricing Disclosure Package, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each
Underwriter: the information in the first paragraph under the heading “Underwriting-Commissions and Discounts,” the information
in the second, third and fourth paragraphs under the heading “Underwriting-Price Stabilization, Short Positions,” and the
information under the heading “Underwriting-Electronic Distribution,” under the caption “Underwriting.”
(d) Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding
paragraphs of this Section 9, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have under the preceding paragraphs of this
Section 9 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under the preceding paragraphs of this Section 9. If any such
proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent
of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section that the Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred.
In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named
parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between
them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such reasonable fees and expenses shall be paid or reimbursed as they are incurred, upon receipt
from the Indemnified Person of a written request for payment thereof accompanied by a written statement with reasonable supporting
detail of such fees and expenses. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control
persons of such Underwriter shall be designated in writing by the Underwriters and any such separate firm for the Company, its
directors, its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing
by the Company and any such separate firm for the Selling Stockholder shall be designated in writing by the Attorneys-in-Fact or any
one of them. The Indemnifying Person 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 Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for
fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance
with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have
been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(e) Contribution. If
the indemnification provided for in paragraphs (a), (b) and (c) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder, on the one hand, and the Underwriters on the other, from the offering of the Shares or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company and the Selling Stockholder, on the one hand, and the Underwriters on the
other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholder, on the one hand, and the
Underwriters on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received
by the Company and the Selling Stockholder from the sale of the Shares and the total net proceeds from the resale to the public of the
Shares purchased under this Agreement. The relative fault of the Company and the Selling Stockholder, on the one hand, and the Underwriters,
on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Selling Stockholder
or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(f) Limitation
on Liability. The Company, the Selling Stockholder and the Underwriters agree that it would not be just and equitable if
contribution pursuant to paragraph (e) above were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred to in paragraph (e) above. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (e) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of paragraphs (e) and (f), in no event shall an Underwriter
be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to
paragraphs (e) and (f) are several in proportion to their respective purchase obligations hereunder and not joint.
(g) Non-Exclusive
Remedies. The remedies provided for in paragraphs (a) through (f) are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any Indemnified Person at law or in equity.
10. Effectiveness
of Agreement. This Agreement shall become effective as of the date first written above.
11. Termination.
This Agreement may be terminated in the absolute discretion of the Underwriters, by notice to the Company and the Selling Stockholder,
if after the execution and delivery of this Agreement and on or prior to the Closing Date or, in the case of the Option Shares, prior
to the Additional Closing Date (i) trading generally shall have been suspended or materially limited on or by any of the New York Stock
Exchange or The Nasdaq Stock Market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal
or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Underwriters, is material
and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date
or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure
Package and the Prospectus.
12. Defaulting
Underwriter.
(a) If,
on the Closing Date or the Additional Closing Date, as the case may be, an Underwriter defaults on its obligation to purchase the Shares
that it has agreed to purchase hereunder on such date, the non-defaulting Underwriter may in is discretion arrange for the purchase of
such Shares by other persons satisfactory to the Company and the Selling Stockholder on the terms contained in this Agreement. If, within
36 hours after any such default by an Underwriter, the non-defaulting Underwriter does not arrange for the purchase of such Shares, then
the Company and the Selling Stockholder shall be entitled to a further period of 36 hours within which to procure other persons reasonably
satisfactory to the non-defaulting Underwriter to purchase such Shares on such terms. If other persons become obligated or agree to purchase
the Shares of a defaulting Underwriter, either the non-defaulting Underwriter or the Company and the Selling Stockholder may postpone
the Closing Date or the Additional Closing Date, as the case may be, for up to five full business days in order to effect any changes
that in the opinion of counsel for the Company, counsel for the Selling Stockholder or counsel for the Underwriters may be necessary in
the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the
term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, pursuant to this Section
12, purchases of Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter by the non-defaulting Underwriter,
the Company and the Selling Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain unpurchased on
the Closing Date or the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate number of Shares to
be purchased on such date, then the Company and the Selling Stockholder shall have the right to require the non-defaulting Underwriter
to purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata
share (based on the number of Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting Underwriter
for which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter by the non-defaulting Underwriter,
the Company and the Selling Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain unpurchased on
the Closing Date or the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of Shares to be purchased
on such date, or if the Company and the Selling Stockholder shall not exercise the right described in paragraph (b) above, then this Agreement
shall terminate without liability on the part of the non-defaulting Underwriter. Any termination of this Agreement pursuant to this Section
12 shall be without liability on the part of the Company and the Selling Stockholder, except that the Company and the Selling Stockholder
will continue to be liable for the payment of expenses as set forth in Section 13 hereof and except that the provisions of Section 9 hereof
shall not terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company and the Selling Stockholder or any
non-defaulting Underwriter for damages caused by its default.
13. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all costs and expenses incident to the performance of their obligations hereunder, including without limitation,
(i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any transfer taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Pricing Disclosure Package and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the fees and
expenses of the Company’s counsel and independent accountants; (iv) the reasonable and itemized fees and expenses incurred in
connection with the registration or qualification and determination of eligibility for investment of the Shares under the laws of
such jurisdictions as the Underwriters may designate and the preparation, printing and distribution of a Blue Sky Memorandum
(including the related reasonable and itemized fees and expenses of counsel for the Underwriters, which are not to exceed
$10,000); (v) the cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and any
registrar; (vii) all fees and expenses incurred in connection with the clearance of the offering by FINRA (which fees and expenses
shall not exceed $10,000); (viii) all expenses incurred by the Company in connection with any “road show” presentation
to potential investors; and (ix) all expenses and application fees related to the listing of the Shares on the Exchange. For
the avoidance of doubt, except as provided in this Section 13 or Section 9 hereof, the Underwriters will pay all of their
costs and expenses, including the fees of their counsel, any stock transfer taxes payable in resale of any of the Shares by them,
and their own travel and lodging expenses in connection with any “road show.”
(b) If
(i) this Agreement is terminated pursuant to Section 11, (ii) the Selling Stockholder for any reason fails to tender the Shares for delivery
to the Underwriters or (iii) the Underwriters decline to purchase the Shares for any reason permitted under this Agreement, the Company
agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the reasonable and itemized fees and expenses
of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby; provided
that in the case of a termination pursuant to Section 12, the Company shall have no obligation to reimburse a defaulting Underwriter for
such costs and expenses.
14. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred to herein and the affiliates of each Underwriter referred
to in Section 9 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Shares from any Underwriter shall
be deemed to be a successor merely by reason of such purchase.
15. Survival.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Selling Stockholder
and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Selling Stockholder or the Underwriters pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholder or the Underwriters.
16. Certain
Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has
the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on
which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth
in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule 1-02 of
Regulation S-X under the Exchange Act.
17. Compliance
with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including
the Company and the Selling Stockholder, which information may include the name and address of their respective clients, as well as other
information that will allow the Underwriters to properly identify their respective clients.
18. Miscellaneous.
(a) Notices. All
notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to Goldman Sachs & Co. LLC, 200 West
Street, New York, NY 10282, Attention: Syndicate Department. Notices to the Company shall be given to it at 3000 Lakeside Dr., Suite 300N,
Bannockburn, IL 60015, Attention: Clifford E. Berman, with a copy to Kirkland & Ellis LLP, 601 Lexington Ave, New York, NY 10022,
Attention: Joshua N. Korff, P.C. and Ross M. Leff, P.C.
(b) Governing
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(c) Waiver
of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or
relating to this Agreement.
(d) Recognition
of the U.S. Special Resolution Regimes.
(i) In the event
that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from
such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(ii) In the event
that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
As used in this Section 18(d):
“BHC Act Affiliate” has the
meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any
of the following:
(i) a “covered entity”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the
Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(e) Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same
instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal
ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and
effective for all purposes.
(f) Amendments
or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(g) Headings. The
headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
[Signature Pages Follow]
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
| |
Very truly yours, |
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|
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Option Care Health, Inc. |
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|
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By: |
/s/ Michael Shapiro |
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|
|
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Name: Michael Shapiro |
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Title: Chief Financial Officer and
Senior Vice President |
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|
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HC Group Holdings I, LLC |
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|
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By: |
/s/ Nicolas Sassali |
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|
|
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Name: Nicolas Sassali |
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Title: Assistant Treasurer |
| Accepted: As of the date first written
above |
|
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|
| Goldman Sachs & Co. LLC |
|
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|
| By: |
/s/ Dan Cocks |
|
| |
|
| Name: Dan Cocks |
|
| Title: Managing Director, ECM |
|
[Signature
Page to Underwriting Agreement]
Schedule 1
| Underwriter | |
Number of Shares | |
| Goldman Sachs & Co. LLC | |
15,000,000 | |
| | |
15,000,000 | |
Annex A
a. Pricing Disclosure Package
None.
b. Pricing Information Provided Orally by Underwriters
| 1. | The Selling Stockholder is selling 15,000,000 Underwritten Shares. |
| 2. | The Selling Stockholder has granted an option to the Underwriters,
severally and not jointly, to purchase up to an additional 2,250,000 Option Shares. |
| 3. | The public offering price per share for the Securities shall
be $20.00. |
| 4. | The lock up period for the company, certain directors affiliated
with the Selling Stockholder, executive officers and the Selling Stockholder is 60 days. |
Annex B
Written Testing-the-Waters Communications
None
Annex C
| 1. | HC Group Holdings I, LLC |
| 2. | Harry M. Jansen Kraemer, Jr. |
Exhibit A
FORM OF LOCK-UP AGREEMENT
June [ ], 2021
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Re: Option Care Health, Inc. --- Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Underwriter,
propose to enter into an underwriting agreement (the “Underwriting Agreement”) with Option Care Health, Inc., a Delaware corporation
(the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by Goldman
Sachs & Co. LLC (the “Underwriter”) of common stock of the Company (the “Common Stock”). Capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In order to induce you to enter into the
Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without the prior written consent of the Underwriter, the undersigned will not, during the period beginning on the date
of this letter agreement (this “Letter Agreement”) and ending 60 days after the date of the Prospectus (such period, 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, 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
(including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be
issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge or
disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of
ownership of the Common Stock or such other securities, 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) cause to be filed or confidentially
submitted any registration statement for the registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock, in each case other than (A) the shares of Common Stock to be sold or transferred by
the undersigned to the Underwriter pursuant to the Underwriting Agreement; (B) transfers as a bona fide gift or gifts, or for bona
fide estate planning purposes; (C) distributions, transfers or exchanges of shares of Common Stock or any security, directly or
indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members,
stockholders or affiliates (as defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of the undersigned; (D) transfers to immediate family members of the undersigned, trusts for the benefit of the
undersigned or immediate family members of the undersigned, or partnerships, limited liability companies or other entities the only
partners, members or equity holders of which are the undersigned and/or immediate family members of the undersigned; (E) transfers
by will or intestacy upon the death of the undersigned, or by operation of law or pursuant to an order of a court or regulatory
authority, such as pursuant to a qualified domestic order, divorce settlement or decree or separation agreement; (F) transfers to,
or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the
Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a
“net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an
employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and
remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the
restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction
in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the
undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share
settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee
of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee or service
provider and (J) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common
Stock pursuant to a Change of Control (defined below) of the Company approved by the Company’s board of
directors, provided that in the event that the Change of Control is not completed, the Common Stock owned by the
undersigned shall remain subject to the restrictions contained herein; provided that in the case of any transfer or
distribution pursuant to clause (B), (C), (D), (E) or (F), each donee, distributee or transferee shall execute and deliver to the
Underwriter a lock-up letter in the form of this paragraph; and provided, further, that in the case of any
transfer or distribution pursuant to clause (B), (C), (D), (E), (F) or (G), no filing by any party (donor, donee, transferor or
transferee) under the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with
such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to
above).
For purposes of this agreement, “Change of
Control” shall mean the transfer in response to a bona fide third party tender offer, merger, consolidation or similar transaction
the result of which any “person” (as defined in Section 13(d)(3) of the Exchange Act) or group of persons, other than the
Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of total voting power
of the voting stock of the Company.
Notwithstanding the foregoing, the
restrictions above shall not prohibit [(i) the pledge, hypothecation or other granting of a security interest in the
undersigned’s shares of Common Stock and any transfer upon foreclosure upon such shares or thereafter, in each case relating
to any margin loan facility of the undersigned; provided that the undersigned or the Company, as the case may be, shall
provide the Underwriter prior written notice informing it of any required public filing, report or announcement made by or on behalf
of the Company or the undersigned with respect thereto, (ii)] [(i)] any transactions effectuated pursuant to a trading plan that
satisfies all the requirements of Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock (“10b5-1
Plan”) [or [(ii)] [(iii)]] the establishment of a 10b5-1 Plan; provided, in the case of any establishment of a
10b5-1 Plan pursuant to clause [(ii)][(iii)], that such 10b5-1 Plan does not provide for the transfer of Common Stock during
the Restricted Period and no public announcement or filing under the Exchange Act regarding such 10b5-1 Plan is required of or
voluntarily made by or on behalf of the undersigned or the Company.
If the Underwriter waives any prohibition on the
transfer of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock beneficially owned
by HC Group Holdings I, LLC or any of its transferees (provided that such transferees are controlled affiliates, members or limited partners
of the undersigned), the Underwriter shall be deemed to have also waived the prohibitions set forth in this Letter Agreement that would
otherwise have applied to the undersigned on the same terms as and with respect to the same percentage of the undersigned’s shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as the relative percentage of aggregate
shares held by such party receiving the waiver which are subject to such waiver. In the event that, as a result of this paragraph, any
of the undersigned’s shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock are
released from the restrictions imposed by this Letter Agreement, the Underwriter shall use its commercially reasonable efforts to notify
the undersigned within three (3) business days of the percentage of shares of Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock held by the undersigned that has been released; provided that the failure to give such
notice shall not give rise to any claim or liability against the Underwriter. The provisions of this paragraph will not apply unless and
until the Underwriter has first waived more than 1% in the aggregate (calculated on a pre-Public Offering basis) of the Company’s
total outstanding shares of Common Stock from such prohibitions.
In furtherance of the foregoing, the Company, and
any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants
that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the
undersigned.
The undersigned understands that the Underwriter
is entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement shall terminate and be
of no further force or effect on the earliest to occur of (i) the date the Company withdraws the Registration Statement with
respect to the Public Offering, (ii) the date, prior to the execution of the Underwriting Agreement, on which the Company
informs the Underwriter in writing that the Company has determined to not proceed with the Public Offering, (iii) the date the
Underwriting Agreement (other than the provisions thereof which survive termination) terminates prior to payment for and delivery of
the Common Stock to be sold thereunder, and (iv) if the Underwriting Agreement has not been executed, June 14, 2021.
This Letter Agreement and any claim, controversy
or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
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Very truly yours, |
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|
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[NAME OF STOCKHOLDER] |
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|
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|
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By: |
|
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Name: |
| |
Title: |
[Signature
Page to Lock-Up Agreement]
Annex D
Significant Subsidiaries
| 1. | Option Care Enterprises, Inc. - Delaware |
| 2. | Clinical Specialties, Inc. - Ohio |
| 3. | Critical Care Systems, Inc. - Delaware |
| 4. | Option Care Home Care, Inc. - Illinois |
| 5. | Crescent Healthcare, Inc. - California |
