UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): March 16, 2016
U.S. Silica Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
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001-35416 |
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26-3718801 |
(Commission File Number) |
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(IRS Employer Identification No.) |
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8490 Progress Drive, Suite 300, Frederick, MD |
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21701 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (301) 682-0600
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
On March 16, 2016, U.S. Silica Holdings, Inc. (the Company) entered into an underwriting agreement (the Underwriting Agreement)
with Barclays Capital Inc. and Morgan Stanley & Co. LLC, as underwriters (the Underwriters), in connection with the offering of 8,695,700 shares of the Companys common stock, par value $0.01 per share (the Common
Stock), sold by the Company (the Offering) at a public offering price of $20.00 per share. The Company granted the Underwriters a 30-day option to purchase up to 1,304,300 additional shares of Common Stock on the same terms, and
the Underwriters exercised the option in full on March 17, 2016.
The Underwriting Agreement contains customary representations, warranties,
covenants and conditions. In the Underwriting Agreement, the Company agreed to indemnify the Underwriters against certain liabilities that could be incurred by them in connection with the Offering.
The Offering is being made pursuant to (i) an effective Registration Statement on Form S-3 (File No. 333-210238) filed with the Securities and
Exchange Commission (the SEC) on March 16, 2016, including a related base prospectus dated March 16, 2016 and (ii) a related prospectus supplement dated March 16, 2016 and filed with the SEC pursuant to Rule 424(b)(2)
under the Securities Act of 1933, as amended. The closing of the sale of the shares contemplated by the Underwriting Agreement is expected to occur on March 22, 2016.
The foregoing summary of the Underwriting Agreement is qualified in its entirety by reference to the Underwriting Agreement attached hereto as Exhibit 1.1
hereto and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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1.1 |
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Underwriting Agreement, dated March 16, 2016, among U.S. Silica Holdings, Inc., Barclays Capital Inc. and Morgan Stanley & Co. LLC, as underwriters. |
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5.1 |
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Opinion of Kirkland & Ellis LLP. |
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23.1 |
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Consent of Kirkland & Ellis LLP (included in Exhibit 5.1). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: March 22, 2016
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U.S. SILICA HOLDINGS, INC. |
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/s/ Christine C. Marshall |
By: |
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Christine C. Marshall |
Title: |
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General Counsel and Secretary |
EXHIBIT INDEX
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Exhibit Number |
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Description |
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1.1 |
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Underwriting Agreement, dated March 16, 2016, among U.S. Silica Holdings, Inc., Barclays Capital Inc. and Morgan Stanley & Co. LLC, as underwriters. |
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5.1 |
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Opinion of Kirkland & Ellis LLP. |
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23.1 |
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Consent of Kirkland & Ellis LLP (included in Exhibit 5.1). |
Exhibit 1.1
8,695,700 Shares
U.S.
Silica Holdings, Inc.
COMMON STOCK, $0.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
March 16,
2016
March 16, 2016
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
U.S. Silica
Holdings, Inc., a Delaware corporation (the Company), proposes to issue and sell to the several underwriters named in Schedule I hereto (the Underwriters), the 8,695,700 shares of common stock, par value $0.01
per share, of the Company (the Firm Shares). The Company also proposes to issue and sell to the several Underwriters not more than an additional 1,304,300 shares of of common stock, par value $0.01 per share, of the Company (the
Additional Shares) if and to the extent that you, as Representatives of the Underwriters of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted
to the Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the Shares. To the extent that you are the only Underwriters, all references to the
Representatives and the Underwriters shall refer to just you.
The shares of common stock, par
value $0.01 per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the Common Stock.
The Company has filed with the Securities and Exchange Commission (the Commission) a registration statement,
including a prospectus, on Form S-3 (File No. 333-210238), relating to the securities (the Shelf Securities), including the Shares, to be sold from time to time by the Company. The registration statement as amended to the
date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the Securities
Act), is hereinafter referred to as the Registration Statement, and the related prospectus covering the Shelf Securities dated March 16, 2016 in the form first used to confirm sales of the Shares (or in the form
first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the Basic Prospectus. The Basic Prospectus, as supplemented by the prospectus supplement dated March 16, 2016 specifically relating to the
Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
Prospectus and the term preliminary prospectus means any preliminary form of the Prospectus.
For purposes of this Agreement, free writing prospectus has the meaning set forth in Rule 405 under the Securities
Act, Time of Sale Prospectus means the documents and pricing information set forth in Schedule II hereto, and broadly available road show means a bona fide electronic road show as defined in Rule
433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms Registration Statement, Basic Prospectus, preliminary prospectus, Time of Sale
Prospectus and Prospectus shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms supplement, amendment, and amend as used
herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the Exchange Act), that are deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement
has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the Companys knowledge, threatened by the Commission. If the
Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration
Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus
or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state
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a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented,
if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show,
if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information furnished to the Company in writing by any Underwriter through you expressly for use therein as identified in the letter being delivered by you to the Company on the date hereof, which information
is specified in Section 9(b).
(c) The Company is not an ineligible issuer in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of
the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on
behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to,
any free writing prospectus.
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(d) The Company has been duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected
to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly
incorporated or formed, as applicable, is validly existing as a corporation or other business entity, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable, has the corporate or other
power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims except for such liens, encumbrances, equities or claims securing the Companys asset-based revolving line-of-credit agreement and senior secured term loan facility.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(h) The outstanding shares of Common Stock have been duly authorized and are validly issued, fully paid
and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the
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Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement,
except as may have been obtained prior to the time of the execution of this Agreement or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the Companys knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would
not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents to which the
Company or any of its subsidiaries is subject, is a party or by which any of their assets are bound that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an investment company as such term is defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) have been and are in compliance with any and all applicable foreign, federal, state and local
laws (statutory, common or otherwise) and regulations relating to the protection of
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human health and safety, the environment, natural resources, or hazardous or toxic substances or wastes, pollutants or contaminants (including, without limitation, petroleum, mining fluids and
byproducts and silica) (Environmental Laws), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have been and
are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures
required for clean-up, restoration, reclamation, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) Except as described in the Time of Sale Prospectus and the Prospectus, none of the Company or its subsidiaries are subject to any pending
or, to the Companys knowledge, threatened legal proceeding by any governmental agency or body under any Environmental Laws in which any fine or penalty of $100,000 or more would reasonably be expected to be imposed.
(r) Except as described in the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(s) Neither the Company nor any of its subsidiaries or controlled affiliates, nor any
director or officer, nor, to the Companys knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or controlled affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or
controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official
action or secure an improper advantage; and the Company and its subsidiaries and controlled affiliates have conducted their respective businesses in
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compliance with applicable anti-corruption laws and have instituted and maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and
warranty contained herein.
(t) The operations of the Company and its subsidiaries are and have been conducted at all times in
material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Anti-Money Laundering Laws), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Companys knowledge, threatened.
(u) (i) Neither the Company nor any of its subsidiaries, nor any director or officer thereof, nor, to the Companys knowledge, any
employee, agent, controlled affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (Person) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasurys Office of Foreign
Assets Control (OFAC), the United Nations Security Council (UNSC), the European Union (EU), Her Majestys Treasury (HMT), or other relevant sanctions authority
(collectively, Sanctions), nor
(B) located, organized or resident in a country or territory that
is the subject of Sanctions (including, without limitation, Cuba, Iran, Libya, North Korea, Sudan, Crimea and Syria).
(ii) The Company
will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of
Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
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(iii) Since March 1, 2011, the Company and its subsidiaries have not knowingly engaged in,
are not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(v) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and
the Prospectus, (i) the Company and its subsidiaries, taken as a whole, have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries, taken as a whole, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(w) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus or
such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in the Time of Sale Prospectus.
(x) The Company and its subsidiaries own,
possess, hold, license or otherwise have the right to use, as applicable, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
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(y) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(z) The Company and its subsidiaries, taken as a whole, are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Company, together with its
subsidiaries, has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost
that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(aa) The Company and its subsidiaries, taken as a whole, possesses all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(bb) The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
fairly presents the
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information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto. Except as described in the Time of Sale
Prospectus, since the end of the Companys most recent audited fiscal year, there has been (i) no material weakness in the Companys internal control over financial reporting (whether or not remediated) and (ii) no change in the
Companys internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting.
(cc) Except as described in the Time of Sale Prospectus or the Registration Statement, the Company has not sold, issued or distributed any
shares of Common Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(dd) The
Company and its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed by them through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not
reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial
statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could
reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ee) The interactive data in eXtensbile 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 Commissions rules and guidelines applicable thereto.
(ff) The qualitative and quantitative data regarding proven and probable mineral reserves of the Company included in the Registration
Statement, Prospectus and Time of Sale Prospectus were derived in all material respects in accordance with the procedures described in the Registration Statement, Prospectus and Time of Sale Prospectus and all applicable industry standards,
including Industry Guide 7 under the Exchange Act.
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(gg) The industry and market-related data, including supply, demand and pricing information,
included in the Registration Statement, Prospectus and Time of Sale Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate in all material respects, and the Company has obtained the consent
to the use of such data from such sources to the extent required.
(hh) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement, Prospectus or Time of Sale Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company at $18.65 per share (the Purchase
Price) the number of Firm Shares (subject to such adjustments to eliminate fractional shares as you may determine) as the number set forth in Schedule I hereto opposite the name of such Underwriter.
On the basis of the representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, the Company
agrees to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up to 1,304,300 Additional Shares at the Purchase Price, provided, however, that the amount paid by the
Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such
notice. On each day, if any, that Additional Shares are to be purchased (an Option Closing Date), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite the name
of such Underwriter bears to the total number of Firm Shares.
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The Company hereby agrees that, without the prior written consent of the Barclays Capital Inc.
and Morgan Stanley & Co. LLC on behalf of the Underwriters, it will not, during the period ending 30 days after the date of the Prospectus (the Restricted Period), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term
is used in Rule 13d-3 of the Exchange Act) or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) file any
registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be sold hereunder, (b) the issuance by
the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion or vesting of a security outstanding on the date hereof and disclosed or incorporated by reference in the Time of Sale Prospectus, (c) the
issuance by the Company of options or other stock-based compensation pursuant to equity compensation plans in existence on the date hereof and disclosed or incorporated by reference in the Time of Sale Prospectus, (d) any repurchase by the
Company or any of its subsidiaries of any shares of Common Stock or any security convertible into Common Stock held by any director or officer of the Company pursuant to any management equity plan or stock option plan or any other management or
employee benefit plan or agreement in connection with such directors or officers termination of employment with the Company, provided that the terms of any such plan or agreement require such repurchase, (e) the establishment
or amendment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that such 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 the establishment or amendment of such plan shall be required of or voluntarily made by or on behalf of the Company, (f) the issuance by the Company of shares of Common Stock as
consideration for bona fide acquisitions, joint ventures, strategic partnerships or collaboration arrangements, provided that any recipients thereof agree to enter into lock-up agreements in the form of Exhibit A hereto with respect to
the remaining portion of the Restricted Period or any extension thereof and the aggregate number of shares of Common Stock issued as such consideration shall not exceed 5.0% of the outstanding Common Stock on the date of this Agreement (as adjusted
for stock splits, stock dividends and other similar events after the date hereof) and (g) the filing of one or more registration statements on Form S-8 with
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the Commission with respect to shares of Common Stock issued or issuable under any equity compensation plan or one or more registration statements on Form S-4 with respect to any shares of Common
Stock permitted to be issued pursuant to clause (f) above.
3. Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of the Shares as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Company is further advised by you that the Shares are to be offered
to the public initially at the public offering price identified on Schedule II hereto (the Public Offering Price) and to certain dealers selected by you at a price that represents a concession not in excess of $0.20 per share
under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal or
other funds immediately available in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on March 22, 2016, or at such other time on the same or such
other date, not later than the fifth business day thereafter, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the Closing Date.
Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than the tenth business day thereafter, as shall be designated in writing by you.
The Firm Shares and
Additional Shares shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date. The Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts of the several Underwriters. The Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or on
behalf of, the Underwriters in connection with the transfer of the Firm Shares or Additional Shares, as applicable, to the Underwriters duly paid and (ii) any withholding required by law.
5. Conditions to the Underwriters Obligations. The several obligations of the Underwriters are subject to the following
conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any nationally recognized statistical
rating organization, as such term is defined in Section 3(a)(62) of the Exchange Act; and
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(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material
and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Kirkland & Ellis LLP,
outside counsel for the Company, and an opinion of Christine C. Marshall, General Counsel for the Company, each dated the Closing Date in the forms previously mutually agreed upon between Kirkland & Ellis LLP and Davis Polk &
Wardwell LLP, outside counsel for the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion and negative
assurance letter of Davis Polk & Wardwell LLP, outside counsel for the Underwriters, dated the Closing Date, in the form mutually agreed upon between the Representatives and Davis Polk & Wardwell LLP.
With respect to the negative assurance letter provided by each of Kirkland & Ellis LLP and Davis Polk & Wardwell LLP
referenced in paragraphs 5(c) and 5(d) above, Kirkland & Ellis LLP and Davis Polk & Wardwell LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the
Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or
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verification, except as specified. The opinion of Kirkland & Ellis LLP described in Sections 5(c) above shall be rendered to the Underwriters at the request of the Company and shall
so state therein.
(e) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date
hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Grant Thornton LLP, independent public accountants, containing statements and information of the type ordinarily included in
accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that
the letter delivered on the Closing Date shall use a cut-off date not earlier than the date hereof.
(f) The
lock-up agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders, officers and directors of the Company listed on Schedule III relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) The Registration Statement has become effective and, at the Closing Date, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of the preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have
been instituted or are pending or, to the Companys knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information in all material respects.
The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable
Option Closing Date of the documents contemplated above dated the date of such Option Closing Date and such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the
Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
6.
Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, two
signed copies of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to
furnish to you in New York City, without charge, prior to 4:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned
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in Section 6(e) or 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to
the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of
Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you
a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule
433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading,
or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any
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event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you
on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now qualified or to take any action that would subject it to service of process in suits, other than those arising
out of the offering or the sale of Shares, or taxation in any jurisdiction where it is not now subject.
(h) To make generally available
to the Companys security holders and to you as soon as reasonably practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement
which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold by the
Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Shares to continue without interruption; references herein to the Registration
Statement shall include the new registration statement declared effective by the Commission.
(j) If requested by the Underwriters, to
prepare a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by
Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
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7. Expenses. Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Companys counsel, the Companys accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration
Statement, the preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Shares (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in
the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in
Section 6(g) hereof, including filing fees and reasonably incurred and documented fees and disbursements of outside counsel to the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment
memorandum (up to a maximum amount, when taken together with the fees and disbursements of outside counsel for the Underwriters incurred in connection with clause (iv) of this Section 9, of $35,000), (iv) all filing fees and
reasonably incurred and documented fees and disbursements of outside counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority (up to a maximum
amount, when taken together with the fees and disbursements of outside counsel for the Underwriters incurred in connection with clause (iii) of this Section 9, of $35,000), (v) all costs and expenses incident to listing the Shares on
the New York Stock Exchange, (vi) the cost of printing certificates representing the Shares, if applicable, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any road show undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic
road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and 50% of the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement,
and (x) all other costs and expenses incident to the performance of the obligations of the Company
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hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 9 entitled Indemnity and
Contribution and the last paragraph of Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their outside counsel, stock transfer taxes payable on resale of any of the Shares by
them, any advertising expenses connected with any offers they may make and the remaining 50% of the cost of any aircraft chartered in connection with the road show.
8. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) of the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the
action of the Underwriter.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under
the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free
writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h)
under the Securities Act (a road show), or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished to the Company in
writing by any Underwriter through you expressly for use therein as identified in the letter being delivered by you to the Company on the date hereof, which information is specified in Section 9(b).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the
Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to such
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Underwriter, and each Underwriter severally confirms that the only information furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto includes the last paragraph of the cover page of the Time of Sale Prospectus regarding
delivery of the Shares and the information set forth in the fourth paragraph and the paragraph relating to stabilization by the Underwriters each appearing under the caption Underwriting in the Time of Sale Prospectus.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 9(a) or 9(b), such person (the indemnified party) shall promptly notify the person against whom such indemnity may be sought (the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall retain outside counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonably incurred and documented fees and disbursements of such outside counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are
affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the
Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding
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effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification
provided for in Section 9(a), or 9(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether 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
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Company or by the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters
respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 9(e) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global
Select Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market,
(iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on
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commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in
financial markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus. Notwithstanding anything in this Agreement to the contrary, if this Agreement is terminated pursuant to
clauses (i), (iii), (iv) or (v) of this Section 10, then the obligation of the Company to reimburse expenses of the Underwriters set forth in clauses (iii) and (iv) of Section 9 of this Agreement are also terminated and
of no further effect.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is
not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 13 by an amount in excess of one-ninth
of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one tenth of the aggregate number of Additional Shares to be purchased on such
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Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing
Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be
terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform
its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the reasonably documented
fees and disbursements of their outside counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder. Notwithstanding anything in this agreement to the contrary, if this Agreement is
terminated pursuant to this Section 11 for any reason other than a failure, refusal or inability of the Company described in this paragraph above, then any obligations of the Company to reimburse the expenses of the Underwriters set forth in
clauses (iii) and (iv) of Section 7 of this Agreement are also terminated and of no further effect.
12. Entire
Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement
between the Company, on the one hand, and the Underwriters, on the other, with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at
arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the
extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
13. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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14. Applicable Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this Agreement.
16. Notices. All communications hereunder
shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives at both Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration,
with a copy to the Director of Litigation, Office of the General Counsel, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019 and Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate
Desk, with a copy to the Legal Department; and if to the Company shall be delivered, mailed or sent to c/o U.S. Silica Holdings, Inc., 8490 Progress Drive, Suite 300, Frederick, Maryland 21701, Attention: General Counsel, with a copy to (which shall
not constitute notice) Kirkland & Ellis LLP, 300 North LaSalle, Chicago, Illinois 60654, Attention: Robert M. Hayward, P.C.
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Very truly yours, |
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U.S. SILICA HOLDINGS, INC. |
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By: |
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/s/ Bryan A. Shinn |
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Name: |
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Bryan A. Shinn |
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Title: |
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CEO |
[Signature Page to the
Underwriting Agreement]
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Accepted as of the date hereof |
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Barclays Capital Inc. |
Morgan Stanley & Co. LLC |
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By: |
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Barclays Capital Inc. |
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By: |
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/s/ Victoria Hale |
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Name: |
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Victoria Hale |
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Title: |
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Vice President |
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By: |
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Morgan Stanley & Co. LLC |
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By: |
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/s/ Ashley MacNeill |
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Name: |
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Ashley MacNeill |
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Title: |
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Executive Director |
[Signature Page
to the Underwriting Agreement]
SCHEDULE I
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Underwriter |
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Number of Shares To Be Purchased |
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Barclays Capital Inc. |
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4,347,850 |
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Morgan Stanley & Co. LLC |
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4,347,850 |
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Total: |
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8,695,700 |
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I-1
SCHEDULE II
Time of Sale Prospectus
1. |
Preliminary prospectus supplement issued March 16, 2016. |
2. |
Pricing Information Conveyed by the Underwriters: |
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Firm Shares: 8,695,700 Shares |
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Additional Shares: 1,304,300 Shares |
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Public Offering Price: $20.00 per Share |
II-1
SCHEDULE III
Lockup Parties
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5. |
William Jennings Kacal |
III-1
EXHIBIT A
FORM OF LOCK-UP LETTER
, 2016
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
The undersigned
understands that Barclays Capital Inc. and Morgan Stanley & Co. LLC propose to enter into an Underwriting Agreement (the Underwriting Agreement) with U.S. Silica Holdings, Inc., a Delaware corporation (the
Company) providing for the public offering (the Public Offering) by the several Underwriters, including Barclays Capital Inc. and Morgan Stanley & Co. LLC (the Underwriters), of
shares (the Shares) of the common stock, par value $0.01 per share, of the Company (the Common Stock).
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Barclays Capital Inc. and Morgan Stanley & Co. LLC on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 30 days after the
date of the final prospectus (the Restricted Period) relating to the Public Offering (the Prospectus), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act
of 1934, as amended (the Exchange Act)) by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by
A-1
delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of
Common Stock or other securities acquired in such open market transactions, (b) transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide gift or by will or intestacy, (c) transfers of shares of
Common Stock or any security convertible into Common Stock to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this agreement, immediate family shall mean any relationship by
blood, not more remote than first cousin, marriage or adoption), (d) distributions of shares of Common Stock or any security convertible into Common Stock to affiliates of the undersigned, including general or limited partners, members,
stockholders or wholly-owned subsidiaries of the undersigned; provided that in the case of any transfer or distribution pursuant to clause (b), (c) or (d), (i) each donee, distributee, beneficiary, heir, trustee or
transferee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall
be required or shall be voluntarily made during the Restricted Period, except the undersigned may make such a filing in the case of a distribution pursuant to clause (d), provided that such filing clearly states that (i) the
reduction in beneficial ownership of shares of Common Stock of the undersigned is the result of a distribution of shares of Common Stock to its general or limited partners, members, stockholders or wholly-owned subsidiaries and (ii) all
such distributees signed and delivered a lock-up letter substantially in the form of this letter, (e) shares of Common Stock (i) withheld by the Company in connection with the exercise or vesting, as applicable, of outstanding equity
awards granted under the Companys equity incentive plans and held by the undersigned on the date hereof and disclosed or incorporated by reference in the Prospectus, provided that the delivery of shares of Common Stock by the Company in
connection with such exercise or vesting, as applicable, takes place on a net basis for the limited purpose of covering any associated payment of exercise price and/or tax withholding obligation of the undersigned, or (ii) acquired
pursuant to a net exercise or cashless exercise by the undersigned of outstanding equity awards pursuant to the Companys equity incentive plans in existence on the date hereof and disclosed or incorporated by reference in the Prospectus,
provided that any Common Stock acquired upon the net exercise or cashless exercise of equity awards described in this clause (e)(ii) shall be subject to the restrictions set forth in this agreement, (f) sales of shares of Common Stock
pursuant to a trading plan established pursuant to Rule 10b5-1 under the Exchange Act in existence on the date hereof, provided that such plan shall not be modified during the Restricted Period, (g) the establishment or amendment of a
trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock,
A-2
provided that such 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 the
establishment or amendment of such plan shall be required of or voluntarily made by or on behalf of the undersigned or the Company, (h) any repurchase by the Company or any of its subsidiaries of any shares of Common Stock or any security
convertible into Common Stock held by the undersigned pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement in connection with the undersigneds termination of employment with
the Company, provided that the terms of any such plan or agreement require such repurchase, (i) any transfer of shares of Common Stock or any security convertible into Common Stock pursuant to a bona fide third-party tender offer,
merger, consolidation or other similar transaction made to all holders of the Common Stock involving a change of control of the Company, provided that in the event that the tender offer, merger, consolidation or other such transaction is not
completed, the Common Stock owned by the undersigned shall remain subject to the restrictions contained in this agreement, (j) making any demand for or exercising any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock, provided that no registration statement shall be filed with the Securities and Exchange Commission pursuant to such demand or right during the Restricted Period, or
(k) the exercise of any options to purchase Common Stock held by the undersigned in accordance with their terms and disclosed or incorporated by reference in the Prospectus, provided that the Common Stock issued to the undersigned
pursuant to such exercise shall remain subject to the restrictions contained in this agreement. The undersigned also agrees and consents to the entry of stop transfer instructions with the Companys transfer agent and registrar against the
transfer of the undersigneds shares of Common Stock except in compliance with the foregoing restrictions.
This agreement shall
automatically terminate upon the earliest of: (i) notification by the Company to the Underwriters that the Company does not intend to proceed with the Public Offering, (ii) April 30, 2016, in the event that the Underwriting Agreement
has not been executed by the Company, Barclays Capital Inc. and Morgan Stanley & Co. prior to such date, and (iii) termination of the Underwriting Agreement (other than the provisions thereof which survive termination) prior to the
sale of any of the Shares to the Underwriters.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigneds heirs, legal representatives, successors and assigns.
A-3
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
[Signature Page Follows]
A-4
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Very truly yours, |
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[●] |
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Name |
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Address |
[Signature Page to the Lock-Up Agreement]
A-5
Exhibit 5.1
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300 North LaSalle Street
Chicago, Illinois 60654 |
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312 862-2000 |
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Facsimile:
(312) 862-2200 |
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www.kirkland.com |
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March 22, 2016 |
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U.S. Silica Holdings, Inc.
8490
Progress Drive, Suite 300
Frederick, Maryland 21701
Ladies
and Gentlemen:
We are acting as special counsel to U.S. Silica Holdings, Inc., a Delaware corporation (the Company), in
connection with the registration by the Company of 10,000,000 shares of its Common Stock, par value $0.01 per share (the Common Stock), including shares of Common Stock to cover the exercise of the underwriters option to purchase
additional shares, pursuant to the terms of the underwriting agreement, dated March 16, 2016 (the Underwriting Agreement) among the Company, Barclays Capital Inc. and Morgan Stanley & Co. LLC, as the underwriters named in
Schedule I thereto. The shares of Common Stock to be sold by the Company are referred to herein as the Shares and are being offered and sold under a Registration Statement on Form S-3 (Registration No. 333-210238) filed by
the Company with the Securities and Exchange Commission (the Commission) on March 16, 2016 under the Securities Act of 1933, as amended (the Act) (such Registration Statement, as amended or supplemented, is hereinafter
referred to as the Registration Statement), including a base prospectus dated March 16, 2016 (the Base Prospectus), and a prospectus supplement dated March 16, 2016 (together with the Base Prospectus, the
Prospectus).
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction,
of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the corporate and organizational documents of the Company, including the Second Amended and Restated
Certificate of Incorporation of the Company and the Second Amended and Restated Bylaws of the Company; (ii) resolutions of the Board of Directors of the Company with respect to the issuance of the Shares; (iii) the Registration Statement
and the exhibits thereto and the Prospectus; and (iv) the Underwriting Agreement.
For purposes of this opinion, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal
capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and
the due
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Palo Alto |
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Shanghai |
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Washington, D.C. |
U.S. Silica Holdings, Inc.
March 22, 2016
Page 2
authorization, execution and delivery of all documents by the parties thereto other than the Company. We relied upon statements and representations of officers and other representatives of the
Company and others as to factual matters.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the
further limitations set forth below, we are of the opinion that, the Shares are duly authorized, and when the Shares are registered by the Companys transfer agent and delivered against payment of the agreed consideration therefor, all in
accordance with the Underwriting Agreement, the Shares will be validly issued, fully paid and non-assessable.
Our opinion expressed above
is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions
of the Delaware constitution and reported judicial decisions interpreting the foregoing).
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5.1 to the Companys current report on Form 8-K. We also consent to the reference to our firm under the heading Legal Matters in the Prospectus constituting part of the Registration Statement. In
giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the
securities or Blue Sky laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the
specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
This opinion is
furnished to you in connection with the filing of the Prospectus and in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act, and is not to be used, circulated, quoted or otherwise relied upon for any
other purpose.
Very truly yours,
/s/ KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS LLP
Silica (NYSE:SLCA)
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