Cushman & Wakefield Ltd 8-K, filed Jun 7, 2021
Cushman & Wakefield Ltd. (CWK)
About this 8-K
Cushman & Wakefield Ltd filed this 8-K on June 7, 2021, reporting on events of June 2, 2021.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant specified in its charter)
| (State or Other Jurisdiction Of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
(Address of principal executive offices, including zip code)
(Registrant’s telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report.)
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 (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading |
Name of each exchange | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01 | Other Events. |
Underwriting Agreement
On June 2, 2021, Cushman & Wakefield plc (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) by and among the Company, Goldman Sachs & Co. LLC, as the sole underwriter (the “Underwriter”), and the selling shareholders named therein (the “Selling Shareholders”). The Underwriting Agreement relates to an underwritten public offering by the Selling Shareholders of an aggregate of 10,000,000 of the Company’s ordinary shares, nominal value $0.10 per share (the “Shares”). Under the terms of the Underwriting Agreement, the Selling Shareholders granted the Underwriter an option, exercisable for 30 days, to purchase up to an additional 1,500,000 ordinary shares (the “Option Shares”). The offering of the Shares and Option Shares was registered under the Securities Act of 1933, as amended, pursuant to a registration statement on Form S-3 (File No. 333-234624) filed with the Securities and Exchange Commission. The Company did not receive any proceeds from the sale of the Shares by the Selling Shareholders. The Shares were delivered on June 7, 2021.
The Underwriting Agreement contains customary representations, warranties and covenants of the Company and the Selling Shareholders and also provides for customary indemnification by each of the Company, the Selling Shareholders and the Underwriter against certain liabilities. The assertions embodied in the representations, warranties and covenants were made solely for purposes of the Underwriting Agreement and may be subject to important qualifications and limitations agreed to by the parties thereto in connection with negotiating its terms. Therefore, no person should rely on the representations and warranties as statements of factual information at the time they were made or otherwise.
The foregoing description of the Underwriting Agreement does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the Underwriting Agreement, which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
Press Releases
On June 2, 2021, the Company issued a press release announcing the offering of the Shares and a press release announcing the pricing of the offering of the Shares. Copies of the press releases are filed herewith as Exhibits 99.1 and 99.2, respectively, and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| Exhibit |
Description | |
| 1.1 | Underwriting Agreement, dated June 2, 2021, by and among Cushman & Wakefield plc, Goldman Sachs & Co. LLC and the Selling Shareholders named therein. | |
| 99.1 | Press release announcing offering of shares, dated June 2, 2021. | |
| 99.2 | Press release announcing pricing of offering of shares, dated June 2, 2021. | |
| 99.3 | Information relating to Part II, Item 14. “Other Expenses of Issuance and Distribution” of the Company’s Registration Statement on Form S-3 (File No. 333-234624). | |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL). | |
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.
| Dated: June 7, 2021 | CUSHMAN & WAKEFIELD PLC | |||||
| By: | /s/ Brett Soloway | |||||
| Name: Brett Soloway | ||||||
| Title: Executive Vice President, General Counsel and Corporate Secretary | ||||||
Exhibit 1.1
10,000,000 Shares
CUSHMAN & WAKEFIELD PLC
ORDINARY SHARES, NOMINAL VALUE $0.10 PER SHARE
UNDERWRITING AGREEMENT
June 2, 2021
June 2, 2021
Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Ladies and Gentlemen:
Certain shareholders of Cushman & Wakefield plc, a public limited company organized under the laws of England and Wales (the “Company”), named in Schedule I hereto (the “Selling Shareholders”), severally and not jointly, propose to sell to the Underwriter named in Schedule II hereto (the “Underwriter”), an aggregate of 10,000,000 ordinary shares, nominal value $0.10 per share (the “Firm Shares”) of the Company, each Selling Shareholder selling the amount set forth opposite such Selling Shareholder’s name under the column “Firm Shares” in Schedule I hereto. The ordinary shares, nominal value $0.10 per share, of the Company are hereinafter referred to as the “Ordinary Shares.”
The Selling Shareholders also propose to issue and sell to the Underwriter not more than an additional 1,500,000 Ordinary Shares (the “Additional Shares”), if and to the extent that the Underwriter shall have determined to exercise the right to purchase such Additional Shares granted to the Underwriter pursuant to Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement, including a prospectus, on Form S-3 (File No. 333-234624), relating to the Shares. The registration statement as amended to the date of this Agreement, including 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, dated November 12, 2019, included in the Registration Statement at the time first filed with the Commission when it became automatically effective covering the securities included in such Registration Statement, including the Shares, is hereinafter referred to as the “Base Prospectus.” The Base Prospectus, as supplemented by the prospectus supplement, dated June 2, 2021, specifically relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriter by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the Prospectus, including, without limitation, the Time of Sale Prospectus (as defined below). 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 under the caption “Time of Sale Prospectus” in Schedule III hereto, “Applicable Time” means 4:15 p.m. (New York City time) on June 2, 2021, 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”, “Base Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents incorporated and deemed to be incorporated by reference therein as of the date of reference to any such “Registration Statement,” “Base Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus”. The terms “supplement,” “supplemented” “amendment,” “amend” and “amended” as used herein with respect to the Registration Statement, the Base Prospectus, any preliminary prospectus, the Time of Sale 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”), as of the time at which such representation, warranty or statement is or was made in such Registration Statement, the Base Prospectus, any preliminary prospectus, the Time of Sale Prospectus or the Prospectus 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 the Underwriter that:
(a) 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 or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be 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, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement 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, (iv) 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 5), 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, (v) 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 (vi) as of its date and the Closing Date, the Prospectus does
2
not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein.
(c) The Company has been since the time of initial filing of the Registration Statement and continues to be a “well-known seasoned issuer” (as defined in Rule 405) eligible to use Form S-3 for the offering of the Shares, including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and was filed not earlier than the date that is three years prior to the date of this Agreement.
(d) 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 III hereto, and electronic road shows, if any, each furnished to the Underwriter before first use, the Company has not prepared, used or referred to, and will not, without the prior consent of the Underwriter, prepare, use or refer to, any free writing prospectus.
(e) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus and the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) The Company has been duly organized, is validly existing as a company in good standing under the laws of the jurisdiction of its organization, has the corporate power and authority to own its properties and to conduct its business as described in each of the Time of Sale Prospectus and the 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.
3
(g) Each of the Company’s subsidiaries has been duly incorporated, organized or formed, is validly existing as a corporation or otherwise in good standing under the laws of the jurisdiction of its incorporation or organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the requisite power and authority to own its property and to conduct its business as described in each of the Time of Sale Prospectus and the 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 (to the extent the concept of good standing is applicable in such jurisdiction), 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 share capital of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent such concepts are applicable under relevant law) and are owned directly by the Company or a subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, 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. As used in this Agreement with respect to the Company, “subsidiaries” shall mean direct and indirect subsidiaries of the Company.
(h) This Agreement has been duly authorized, executed and delivered by the Company.
(i) The authorized share capital of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(j) The Ordinary Shares (including the Shares to be sold by the Selling Shareholders) outstanding as of the date hereof have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to any preemptive or similar rights.
(k) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not (i) contravene any provision of applicable law, (ii) contravene any provision of the memorandum or articles of association of the Company, (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) contravene any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except that, in the case of clauses (i) and (iii) as would not, individually or in the
4
aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power and ability of the Company to perform its obligations under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may have already been obtained or made or be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(l) 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 each of the Time of Sale Prospectus and the Prospectus.
(m) There are no legal or governmental proceedings pending or, to the knowledge of the Company, 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 each of the Time of Sale Prospectus and the Prospectus and proceedings that 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, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by each of the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described in all material respects. There are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(n) Each preliminary prospectus and the 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, and each such preliminary prospectus and the Prospectus was or will be filed within the time periods required by, the Securities Act and the applicable rules and regulations of the Commission thereunder.
(o) The Company is not required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(p) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under
5
applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) Except with respect to the registration rights agreement in connection with the consummation of the offering, as disclosed 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) Other than Cushman & Wakefield U.S. Borrower, LLC, neither the Company nor any of its subsidiaries has any securities rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(t) None of the Company or its subsidiaries or affiliates, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt 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) (“Government Official”) in order to influence official action, or to any person in violation of any applicable anti-corruption laws. The Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein.
6
(u) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(v) (i) None of the Company, any of its subsidiaries, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent, 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 one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Since November 1, 2014, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(w) 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 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 share capital (other than from its employees or other service providers in connection with the termination of their service pursuant to plans or agreements described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively), nor declared, paid or otherwise made any dividend or distribution of any kind on its share capital other than ordinary and customary dividends; and (iii) there has not been any material change in the share capital
7
(other than the exercise or forfeiture of equity awards outstanding as of such respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, in each case granted pursuant to the equity compensation plans described in the Time of Sale Prospectus), short-term debt or long-term debt of the Company and its subsidiaries (other than borrowings, if any, under the 2018 first lien credit agreement, as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus), except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(x) 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, whether tangible or intangible, owned by them which is material to the business of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Time of Sale Prospectus and the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries. Any real property and buildings held under lease by the Company and its subsidiaries are held by the Company or its subsidiaries, as applicable, under valid, subsisting and, to the Company’s knowledge, 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 each of in the Time of Sale Prospectus and the Prospectus.
(y) Except as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, and except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) to the knowledge of the Company, the Company and its subsidiaries own or have valid, binding and enforceable rights under all patents, patent applications, patent rights, licenses, inventions, copyrights, trade secrets (including any unpatented and/or unpatentable proprietary or confidential information, systems or procedures included therein), trademarks, service marks, trade names, domain names and other intellectual property (collectively, the “Intellectual Property”) used in or necessary for the conduct of their respective businesses as currently conducted, except as enforceability of any licenses may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; (ii) neither the Company nor any of its subsidiaries has sent or received any written notice of any claim of infringement, dilution or misappropriation with respect to any Intellectual Property; (iii) no action, suit, claim or other proceeding is pending or, to the knowledge of the Company, is threatened, challenging the validity or enforceability of any Intellectual Property owned by the Company or its subsidiaries; (iv) to the knowledge of the Company, no third party is infringing, diluting, misappropriating or conflicting with or has infringed, diluted or misappropriated
8
any Intellectual Property owned by the Company or its subsidiaries; and (v) to the knowledge of the Company, the conduct of the Company’s and its subsidiaries’ respective businesses as currently conducted does not infringe, dilute or misappropriate any third party’s Intellectual Property.
(z) Except as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, and except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, to the knowledge of the Company, (i) there has been no security breach or other security compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data, trade secrets, or equipment; and (ii) the Company and its subsidiaries are presently in compliance with all applicable laws, regulations, contractual obligations and internal policies relating to data privacy and security or personally identifiable information.
(aa) No material labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in each of the Time of Sale Prospectus and the Prospectus, or, to the knowledge of the Company, is imminent. 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 be reasonably likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(bb) Except (i) as described in the Time of Sale Prospectus or (ii) as would not, individually or in the aggregate, have, or reasonably be expected to have, a material adverse effect on the Company and its subsidiaries, taken as a whole, (A) each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA that the Company or any member of its “Controlled Group” (defined as any organization which is under common control or treated as a single employer with the Company under ERISA or Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) sponsors, maintains or contributed to, or otherwise has liability (contingent or otherwise) in respect of (each, a “Plan”), has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (B) no non-exempt prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan; (C) no Plan is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA; (D) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA in respect of any Plan; (E) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan; and (F) none of the following events has occurred or is reasonably likely to occur: (x) a material increase in the aggregate amount of contributions required to be
9
made to all Plans by the Company or its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the Company and its subsidiaries’ most recently completed fiscal year; or (y) a material increase in the Company and its subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of such obligations in the Company and its subsidiaries’ most recently completed fiscal year.
(cc) The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are, in the reasonable judgment of the Company, 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, except to the extent that such refusal would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. Neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in each of the Time of Sale Prospectus and the Prospectus.
(dd) The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to obtain such certificates, authorizations or permits, individually or in the aggregate, 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, individually 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 each of the Time of Sale Prospectus and the Prospectus.
(ee) KPMG LLP, who has certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, is an independent public accountant as required by the Securities Act and the rules and regulations of the Commission thereunder and the rules and regulations of the Public Company Accounting Oversight Board (United States).
(ff) The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the related notes, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the dates indicated and, in the case of the statements of operations,
10
shareholders’ equity and cash flows of the Company and its consolidated subsidiaries, for the periods specified. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved except (i) the unaudited, interim financial statements, which are subject to normal year-end adjustments and do not contain certain footnotes as permitted by the applicable rules of the Commission and (ii) as otherwise disclosed therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus under the Securities Act and the rules and regulations of the Commission thereunder. To the extent included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the pro forma financial information and the related notes thereto included therein have been prepared in accordance with the applicable requirements of the Securities Act and comply with Regulation G of the Exchange Act, and Item 10 of Regulation S-K of the Securities Act, to the extent applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus in all material respects. All other information regarding the financial condition or results of operations of the Company or its subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby.
(gg) The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement is accurate. Except as described in the Time of Sale Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
11
(hh) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act. Such disclosure controls and procedures have been designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer and principal financial officer by others within the Company. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 under the Exchange Act through March 31, 2021.
(ii) Except as described in each of the Time of Sale Prospectus and the Prospectus, the Company has not sold, issued or distributed any Ordinary Shares during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(jj) Except to the extent it would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) each of the Company and its subsidiaries has filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or has requested extensions thereof, (ii) all such filed returns are true and accurate in all material respects, and (iii) each of the Company and its subsidiaries has paid all taxes required to be paid, whether or not shown on such returns (except as currently being contested in good faith and for which reserves required by GAAP have been created in the financial statements of the Company). 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.
(kk) Under the current laws of England and Wales, all dividends and other distributions declared and payable on the Shares in cash may be freely remitted out of England and Wales and may be paid in, or freely converted into, United States dollars, in each case without there being required any consent, approval, authorization or order of, or qualification with, any court or governmental agency or body in England and Wales; and except as disclosed in the Time of Sale Prospectus and the Prospectus, all such dividends and other distributions paid by the Company will not be subject to withholding under the laws and regulations of England and Wales.
(ll) The Shares have been registered in the name of Cede & Co. as nominee for The Depository Trust Company (“DTC”) on the Company’s register of members in accordance with the Company’s articles of association and applicable law.
12
(mm) No stamp, documentary, issuance, registration, transfer or other similar taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries, the Selling Shareholders or the purchasers procured by the Underwriter in connection with (i) the execution, delivery, consummation or enforcement of this Agreement, (ii) the sale, transfer and delivery of the Shares by the Selling Shareholders to the Underwriter, to be credited by way of book entry interests to the DTC participant account of the Underwriter, (iii) the sale, transfer and delivery by the Underwriter of the Shares to purchasers procured by the Underwriter, to be credited by way of book entry interests to the respective DTC participant accounts of the purchasers and, so far as United Kingdom ad valorem stamp duty is concerned, in respect of which no written instrument of transfer is entered into, or (iv) stabilization transactions in respect of the Shares described under the section titled “Underwriter” in the Prospectus or the Time of Sale Prospectus, where such transactions are to be settled by transfers of book entry interests within the DTC clearance system, and, so far as United Kingdom ad valorem stamp duty is concerned, in respect of which no written instrument of transfer is entered into. Notwithstanding anything above, the Company shall not be taken to be in breach of its representation and warranty in this Section 1(mm) in relation to any United Kingdom ad valorem stamp duty (including interest and penalties) payable pursuant to paragraph 7, Schedule 13 of the United Kingdom Finance Act 1999.
(nn) The Company believes that it was not a “passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes for its most recent taxable year and it does not expect to be a PFIC for its current taxable year or in the foreseeable future.
(oo) It is not necessary under the laws of England and Wales (i) to enable the Underwriter to enforce its rights under this Agreement, to enable any holder of Shares to enforce their respective rights thereunder, provided that they are not otherwise engaged in business in the United Kingdom, or (ii) solely by reason of the execution, delivery or consummation of this Agreement, for the Underwriter or any holder of Shares of the Company to be qualified or entitled to carry out business in the United Kingdom.
(pp) Upon execution and delivery, this Agreement will be in proper form under the laws of England and Wales for the enforcement thereof against the Company, and to ensure the legality, validity, enforceability or admissibility into evidence in England and Wales of this Agreement.
(qq) Except as described in the Time of Sale Prospectus, the courts of the United Kingdom would recognize as a valid judgment any final monetary judgment obtained against the Company in the courts of the State of New York.
(rr) Neither the Company nor any of its subsidiaries nor any of its or their properties or assets has any state or sovereign immunity from the jurisdiction of any court or from any legal process (whether through service or notice,
13
attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of England and Wales. The irrevocable and unconditional waiver and agreement of the Company contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of England and Wales.
(ss) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of England and Wales and will be honored by the courts of England and Wales. The Company has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 19(a)), and has the power to designate, appoint and empower, and pursuant to Section 19(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(tt) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(uu) As of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, none of (A) the Time of Sale Prospectus and (B) any issuer free writing prospectus, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2. Representations and Warranties of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized (if such Selling Shareholder is not a natural person), executed and delivered by or on behalf of such Selling Shareholder and the transactions contemplated by this Agreement have been duly authorized by or on behalf of such Selling Shareholder (if such Selling Shareholder is not a natural person).
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the organizational documents of such Selling Shareholder (if such Selling Shareholder is a corporation, limited liability company, partnership or other entity), (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having
14
jurisdiction over such Selling Shareholder, except in the case of clauses (i), (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Shareholders to consummate the transactions contemplated by this Agreement and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required in connection with the offer and sale of the Shares by the securities, anti-fraud or Blue Sky laws of the various states, the approval for listing of the Shares on the New York Stock Exchange and the approval of the underwriting terms and arrangements by the Financial Industry Regulatory Authority, Inc. or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) Such Selling Shareholder has, and on the Closing Date will have, a “security entitlement” (within the meaning of Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”)) to the Shares to be sold by such Selling Shareholder in a securities account maintained with DTC, free and clear of any claims, liens, or encumbrances, and assuming that the Underwriter acquires its interest in the Shares it has purchased without notice of any adverse claim (within the meaning of Section 8-105 of the NYUCC), upon the crediting of such Shares to the securities account of the Underwriter maintained with DTC and payment therefor by the Underwriter, as provided herein, the Underwriter will acquire a security entitlement to such Shares, and no action based on any adverse claim may be asserted against the Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment and crediting occur, (x) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NYUCC and (y) appropriate entries to the account of the Underwriter on the records of DTC will have been made pursuant to the NYUCC.
(d) (i) The Registration Statement, when it became effective, did 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 required to be stated therein or necessary to make the statements therein not misleading, (ii) 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 5), 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 and (iii) 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
15
warranties set forth in this paragraph 2(d) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by such Selling Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”).
(e) With respect to any Selling Shareholder that is a non-U.S. person, such Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 19(a)), and has the power to designate, appoint and empower, and pursuant to Section 19(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(f) Such Selling Shareholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of Ordinary Shares or certain other securities, that is in full force and effect as of the date hereof and shall be in full force and effect as of the Closing Date.
3. Agreements to Sell and Purchase. Each Selling Shareholder hereby agrees, severally and not jointly, to sell to the Underwriter the number of Firm Shares set forth in Schedule I hereto, and the Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase from such Selling Shareholder at $18.56 a share (the “Purchase Price”) the number of Firm Shares set forth in Schedule II hereto.
On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Selling Shareholders agree to sell to the Underwriter the Additional Shares, as and to the extent indicated in Schedule I hereto, and the Underwriter shall have the right to purchase, up to 1,500,000 Additional Shares at the Purchase Price; provided, however, that the amount paid by the Underwriter for any Additional Shares shall be reduced by an amount per Ordinary Share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. The Underwriter may exercise this right in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriter and the date on which such Additional Shares are to be purchased. Each purchase date must be at least one business day after the written notice
16
is given and may not be earlier than the Closing Date (as defined below) or later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of covering sales of shares in excess of the number of the Firm Shares. Each day, if any, that Additional Shares are to be purchased is referred to hereinafter as an “Option Closing Date.” Any such election to purchase Additional Shares shall be made in proportion, with respect to each Selling Shareholder, to the maximum number of Additional Shares to be sold by the Selling Shareholders as set forth in Schedule I hereto (subject to such adjustments to eliminate fractional shares as the Underwriter may determine).
4. Terms of Public Offering. The Company and the Selling Shareholders are advised by the Underwriter that it proposes to make a public offering of the Shares as soon after this Agreement has been executed as in the Underwriter’s judgment is advisable. The Company and the Selling Shareholders are further advised by the Underwriter that the Shares are to be offered to the public initially at $18.75 a share (the “Public Offering Price”).
5. Payment and Delivery. Payment for the Firm Shares to be sold by each Selling Shareholder shall be made to such Selling Shareholder in Federal or other funds immediately available in New York City against delivery of such Shares for the account of the Underwriter at 10:00 a.m., New York City time, on June 7, 2021 or at such other time on the same or such other date, not later than June 14, 2021, as shall be designated in writing by the Underwriter. 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 Selling Shareholders in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the account of the Underwriter at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 3 or at such other time on the same or on such other date, in any event not later than July 16, 2021, as shall be designated in writing by the Underwriter.
The Firm Shares and any Additional Shares shall be delivered to such DTC account of the Underwriter, and in such denominations, as the Underwriter shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and any Additional Shares shall be delivered to the Underwriter on the Closing Date or an Option Closing Date, as the case may be, for the respective DTC account notified by the Underwriter in accordance with this Section 5, with any amounts in respect of any transfer taxes payable by the Underwriter in connection with such delivery, if any, duly deducted from the Purchase Price payable to the Selling Shareholders by the Underwriter.
17
6. Conditions to the Underwriter’s Obligations. The several obligations of the Selling Shareholders to sell the Shares to the Underwriter and the obligations of the Underwriter to purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) that the Registration Statement became effective prior to the execution of this Agreement and, on 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 any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Shares have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. Any preliminary prospectus and the Prospectus shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A or Rule 430B, as applicable; and
The obligations of the Underwriter are subject to the following further conditions:
(b) 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 Cushman & Wakefield U.S. Borrower, LLC by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus that, in the Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(c) The Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Sections 6(b)(i) and 6(b)(ii) above and 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.
18
The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriter shall have received on the Closing Date a certificate from each of the Selling Shareholders, dated the Closing Date and signed by an executive officer of each Selling Shareholder to the effect that the representations and warranties of such Selling Shareholder contained in this Agreement are true and correct as of the Closing Date and that such Selling Shareholder 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.
(e) The Underwriter shall have received on the Closing Date one or more opinions and a negative assurance letter of Kirkland & Ellis LLP and/or Kirkland & Ellis International LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(f) (i) With respect to TPG Drone Investment, L.P., TPG Drone Co-Invest, L.P. (together with TPG Drone Investment, L.P., “TPG”), Ontario Teachers’ Pension Plan Board (“OTPP”) and PAGAC Drone Holding I LP (“PAG”), the Underwriter shall have received on the Closing Date an opinion of Cleary Gottlieb Steen & Hamilton LLP, United States counsel for such Selling Shareholders, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter; (ii) with respect to TPG, the Underwriter shall have received on the Closing Date an opinion of Maples and Calder, Cayman Islands counsel for such Selling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter; (iii) with respect to OTPP, the Underwriter shall have received on the Closing Date an opinion of Torys LLP, Canadian counsel for such Selling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter; and (iv) with respect to PAG, the Underwriter shall have received on the Closing Date an opinion of Travers Thorp Alberga, counsel for such Selling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(g) The Underwriter shall have received on the Closing Date an opinion and negative assurance letter of Ropes & Gray LLP, counsel for the Underwriter, dated the Closing Date, in form and substance satisfactory to the Underwriter.
(h) The Underwriter shall have received, on each of the date hereof, on the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriter, from KPMG 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 any letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
19
(i) The lock-up agreements, each substantially in the form of Exhibit A hereto, among the Underwriter and the shareholders, officers and directors of the Company listed on Schedule IV relating to sales and certain other dispositions of Ordinary Shares or certain other securities, delivered to the Underwriter on or before the date hereof (the “Lock-Up Agreements”), shall be in full force and effect on the Closing Date and on each Option Closing Date.
(j) The obligation of the Underwriter to purchase Additional Shares hereunder is subject to the satisfaction or the delivery to the Underwriter, as applicable, on the applicable Option Closing Date of the following:
(i) the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct on the date hereof and on and as of the Option Closing Date, and the Company and the Selling Shareholders shall have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Option Closing Date;
(ii) The Underwriter shall have received a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(c) hereof remains true and correct as of such Option Closing Date;
(iii) The Underwriter shall have received a certificate from each of the Selling Shareholders, dated the Option Closing Date and signed by an executive officer of each Selling Shareholder, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(iv) The Underwriter shall have received an opinion and negative assurance letter of Kirkland & Ellis LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(v) (i) With respect to OTPP and PAG, the Underwriter shall have received an opinion of Cleary Gottlieb Steen & Hamilton LLP, United States counsel for such Selling Shareholders, dated the Option Closing Date, to the same effect as the opinion required by Section 6(f) hereof; (ii) with respect to TPG, the Underwriter shall have received an opinion of Maples and Calder, Cayman Islands counsel for such Selling Shareholder, dated the Option Closing Date, to the same effect as the opinion required by Section 6(f) hereof; (iii) with respect to OTPP, the
20
Underwriter shall have received an opinion of Torys LLP, Canadian counsel for such Selling Shareholder, dated the Option Closing Date, to the same effect as the opinion required by Section 6(f) hereof; and (iv) with respect to PAG, the Underwriter shall have received an opinion of Travers Thorp Alberga, counsel for such Selling Shareholder, dated the Option Closing Date, to the same effect as the opinion required by Section 6(f) hereof.
(vi) The Underwriter shall have received an opinion and negative assurance letter of Ropes & Gray LLP, counsel for the Underwriter, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(g) hereof;
(vii) The Underwriter shall have received a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriter, from KPMG LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriter pursuant to Section 6(h) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date;
(viii) The Underwriter shall have received such other documents as the Underwriter 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.
With respect to Sections 6(e), 6(g), 6(j)(iv) and 6(j)(vi) above, Kirkland & Ellis LLP and Ropes & Gray LLP, respectively, 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 verification, except as specified.
The opinion or opinions of Kirkland & Ellis LLP and Kirkland & Ellis International LLP described in Sections 6(e) and 6(j)(iv) above and of each of Cleary Gottlieb Steen & Hamilton LLP, Maples and Calder, Travers Thorp Alberga, and Torys LLP, described in Section 6(f) and 6(j)(v) above shall be rendered to the Underwriter at the request of the Company or one or more of the Selling Shareholders, as the case may be, and shall so state therein.
7. Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) To furnish to the Underwriter, without charge, 3 conformed copies of the Registration Statement (including exhibits thereto) and to furnish to the
21
Underwriter in New York City, without charge, prior to 10:00 a.m. New York City time on the second business day succeeding the date of this Agreement and during the period mentioned in Section 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Underwriter may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Underwriter a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Underwriter reasonably objects, 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 the Underwriter 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 the Underwriter reasonably objects.
(d) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required
22
by law to be delivered in connection with sales by the Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Shares may have been sold by the Underwriter 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 the Underwriter shall reasonably request; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) To make generally available to the Company’s security holders and to the Underwriter as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder, provided that the Company will be deemed to have complied with such requirement by filing such earnings statement on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (or any successor system) (“EDGAR”).
(i) 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 and the Selling Shareholders’ obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants and the counsel for the Selling Shareholders in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and
23
delivering of copies thereof to the Underwriter and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriter, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriter in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriter incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority (provided that the amount payable by the Company with respect to fees and disbursements of counsel for the Underwriter pursuant to subsections (iii) and (iv) shall not exceed $30,000 in the aggregate), (v) the cost of printing certificates representing the Shares, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) 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 fifty percent (50%) of the cost of any aircraft chartered in connection with the road show (the remaining 50% of the costs of such aircraft to be paid by the Underwriter), (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Shareholders hereunder for which provision is not otherwise made in this Section. It is understood, however, that the provisions of this Section 7(i) will exclude, and that the Underwriter will pay: (a) all net income taxes payable by the Underwriter in respect of underwriting commissions payable under, or in connection with, this Agreement or the matters contemplated hereunder; and (b) except as provided in this Section, Section 10 entitled “Indemnity and Contribution” and the last paragraph of Section 12 below, all costs and expenses of the Underwriter, including fees and disbursements of its counsel.
(j) The Company has caused to be delivered to you prior to the date of this Agreement a Lock-Up Agreement from each individual or entity listed on Schedule IV hereto. The Company shall not take any steps to enable the breach of (i) any Lock-Up Agreement, (ii) the lock-up provision contained in Section 3(a) of any of the Company’s Management Stockholders’ Agreements (each, a “Management Stockholders’ Agreement”), and (iii) the lock-up provisions contained in Section 3(a) of either of the two respective Company’s Stockholders’ Agreements dated January 8, 2016 (the “Stockholders’ Agreements”).
24
Additionally, the Company will use commercially reasonable efforts to issue stop transfer instructions to its transfer agent and registrar for the Ordinary Shares with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement, Management Stockholders’ Agreement or Stockholders’ Agreements. Notwithstanding the foregoing, the Company will be permitted to waive the lock-up provisions contained in each Management Stockholders’ Agreement solely to permit the person restricted by such agreement to sell or dispose of a number of Ordinary Shares not to exceed the pro rata portion of each such person’s Ordinary Shares that bears the same ratio to the total Ordinary Shares, vested options and restricted share units owned by such person as the total number of Ordinary Shares registered for sale by the Selling Shareholders bears to the total number of Ordinary Shares owned by the Majority Stockholder (as such term is defined in any of the Management Stockholders’ Agreements) as of the date the Registration Statement was filed with the Commission.
The Company also covenants with the Underwriter that, without the prior written consent of the Underwriter, it will not, during the period ending 60 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 Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares 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 Ordinary Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares or such other securities, in cash or otherwise or (3) file any registration statement or make a confidential submission with the Commission relating to the offering of any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares.
The restrictions contained in the preceding paragraph shall not apply to (a) the issuance by the Company of Ordinary Shares upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriter has been advised in writing, (b) the grant of restricted stock, options or other equity awards pursuant to employee benefit plans of the Company in effect on the date hereof and referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus, provided that the recipients thereof execute and deliver to the Underwriter a “lock-up” agreement substantially in the form of Exhibit A hereto for the remainder of the Restricted Period or, in the case of options or restricted stock units, such awards do not become exercisable or vest, as applicable, during the Restricted Period, (c) the filing by the Company of a registration statement with the Commission on Form S-8 relating to the offering of securities granted or to be granted in accordance with the terms of an equity incentive plan, employee benefit plan, employment agreement or similar arrangement in effect on the date hereof and described in the Time of Sale Prospectus and the Prospectus (provided that any Ordinary Shares registered pursuant to such registration statement shall be subject to restrictions described in the preceding paragraph for the remainder of the Restricted Period), (d) the sale or issuance of or entry into an agreement to sell or
25
issue Ordinary Shares or any securities convertible into or exercisable or exchangeable for such Ordinary Shares in connection with bona fide mergers, acquisitions or joint ventures, provided that the aggregate number of Ordinary Shares or securities convertible into or exercisable for Ordinary Shares (on an as-converted or as-exercised basis, as the case may be) that the Company may sell or issue or agree to sell or issue pursuant to this clause (d) shall not exceed 10% of the total number of Ordinary Shares issued and outstanding immediately following the completion of the transactions contemplated by this Agreement, and provided, further, that in the case of this clause (d), any recipient of such securities shall execute and deliver to the Underwriter a “lock-up” agreement substantially in the form of Exhibit A hereto covering the remainder of the Restricted Period, (e) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Ordinary Shares, provided that (i) such plan does not provide for the transfer of Ordinary Shares during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Ordinary Shares may be made under such plan during the Restricted Period, or (f) the sale or issuance of Ordinary Shares to one or more employees of the Company as required pursuant to an agreement in effect on the date hereof, provided that the aggregate number of Ordinary Shares that the Company may sell or issue or agree to sell or issue pursuant to this clause (f) shall not exceed 0.3% of the total number of Ordinary Shares issued and outstanding immediately following the completion of the transactions contemplated by this Agreement.
8. Covenants of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, covenants with the Underwriter as follows:
(a) Each Selling Shareholder will deliver to the Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.
(b) Each Selling Shareholder will deliver to the Underwriter (or its agent), on the date of execution of this Agreement, to the extent applicable to such Selling Shareholder, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of any additional documentation necessary to comply with 31 CFR § 1010.230.
9. Covenants of the Underwriter. The Underwriter covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
10. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless the Underwriter, each person, if any, who controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act
26
and each affiliate of the Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any reasonably incurred and documented 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, the Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein.
(b) Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Underwriter, each person, if any, who controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of the Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, 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, (A) 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 any Underwriter Information and (B) only to the extent such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with the Selling Shareholder Information.
(c) The Underwriter agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, the Selling Shareholders, and each person, if any, who controls the Company or any Selling Shareholder 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 and the Selling Shareholders to the Underwriter, but only with
27
reference to information relating to the Underwriter furnished to the Company in writing by the Underwriter 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 (collectively, “Underwriter Information”). For purposes of this Agreement, the only Underwriter Information so furnished shall be the information concerning stabilizing transactions, short sales and other information appearing in the thirteenth paragraph under the caption “Underwriter.”
(d) 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 10(a), 10(b) or 10(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred and documented fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the reasonably incurred and documented fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party; or (iv) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonably incurred and documented fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such reasonably incurred and documented fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Underwriter, in the case of parties indemnified pursuant to Section 10(a) or Section 10(b), or by the Company, in the case of parties indemnified pursuant to Section 10(c). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonably incurred and documented fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the
28
indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request, and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement admitting fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e) To the extent the indemnification provided for in Section 10(a), 10(b) or 10(c) 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 10(e)(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 10(e)(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 and the Selling Shareholders on the one hand and the Underwriter on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Shareholders and the total underwriting discounts and commissions received by the Underwriter, 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 and the Selling Shareholders on the one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Selling Shareholders or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Notwithstanding anything to the contrary in this Section 10, the liability of each Selling Shareholder under Section 10(b) and (e) above shall in no event exceed the amount of such Selling Shareholders’ net proceeds (after deducting underwriting discounts and commissions but before deducting any other expenses) from its sale of Shares in the Offering.
29
(g) The Company, the Selling Shareholders and the Underwriter agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriter were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 10(e) 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 10, the Underwriter shall not be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by the Underwriter with respect to the Shares underwritten by it and distributed to the public exceeds the amount of any damages that the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 10 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.
(h) The indemnity and contribution provisions contained in this Section 10 and the representations, warranties and other statements of the Company and the Selling Shareholders contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Underwriter, any person controlling the Underwriter or any affiliate of the Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
11. Termination. The Underwriter may terminate this Agreement by notice given by the Underwriter to the Company, the Selling Shareholders, if after the execution and delivery of this Agreement and prior to the Closing Date or any Option Closing Date, as the case may be, (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, the New York Stock Exchange or the Nasdaq Global Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States or England and Wales shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State or relevant foreign country 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 the Underwriter’s judgment, is material and
30
adverse and which, individually or together with any other event specified in this clause (v), makes it, in the Underwriter’s 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.
12. Effectiveness; Default. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company or any Selling Shareholder to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or any Selling Shareholder shall be unable to perform its obligations under this Agreement, the Company or the Selling Shareholder, as applicable, will reimburse the Underwriter for all out-of-pocket expenses (including the fees and disbursements of its counsel) reasonably incurred by the Underwriter in connection with this Agreement or the offering contemplated hereunder.
13. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Selling Shareholders on the one hand, and the Underwriter 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 Selling Shareholders and the Company each acknowledge that in connection with the offering of the Shares: (i) the Underwriter has acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Selling Shareholders or the Company or any other person, (ii) the Underwriter owes the Selling Shareholders and 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, (iii) the Underwriter may have interests that differ from those of the Selling Shareholders and the Company, (iv) the Underwriter is not advising the Selling Shareholders or the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction, and (v) none of the activities of the Underwriter in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation of any action by the Underwriter with respect to any entity or natural person. The Selling Shareholders and the Company waive to the full extent permitted by applicable law any claims they may have against the Underwriter arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
(c) Each Selling Shareholder further acknowledges and agrees that, although the Underwriter may provide certain Selling Shareholders with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Underwriter is not making a
31
recommendation to any Selling Shareholder to participate in the offering or sell any Shares at the Purchase Price, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
14. Recognition of the U.S. Special Resolution Regimes. (a) In the event that the Underwriter is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that (i) the Underwriter (if it is a Covered Entity) or (ii) a BHC Act Affiliate of the Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
15. Counterparts; Electronic Signature. 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. Delivery of an executed Agreement by one party to the other may be made by facsimile, electronic mail or other transmission method as permitted by applicable law, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. A party’s electronic signature (complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) of this Agreement shall have the same validity and effect as a signature affixed by the party’s hand.
16. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
32
17. 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.
18. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriter shall be delivered, mailed or sent to the Underwriter at Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department, with a copy (which copy shall not constitute notice) to Ropes & Gray LLP, Prudential Tower, 800 Boylston Street, Boston, Massachusetts 02199, Attention: Patrick O’Brien; if to the Company shall be delivered, mailed or sent to Cushman & Wakefield plc, c/o CT Corporation System, 28 Liberty Street, New York, New York 10005, with a copy (which copy shall not constitute notice) to Kirkland & Ellis LLP, 300 North LaSalle, Chicago, Illinois 60654, Attention: Ana Sempertegui; if to TPG, mailed or sent to 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102, Attention: Office of General Counsel, with a copy (which copy shall not constitute notice) to 345 California Street, San Francisco, California 94104, Attention: Adam Fliss; if to OTPP, mailed or sent to 5650 Yonge Street, Toronto, Ontario M2M 4H5, Canada, with a copy (which copy shall not constitute notice) to Baker McKenzie, Tower One – International Towers Sydney Level 46 – 100 Barangaroo Avenue, Sydney NSW 2000, Australia, Attention: Michael Kunstler and Lewis Apostolou; if to either of TPG or OTPP, with a copy (which copy shall not constitute notice) to Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York 10006, Attention: Jeffrey Karpf; if to PAG, 33/F, Three Pacific Place, 1 Queen’s Road East, Hong Kong, Attention: Jon Lewis and Elaine Chen, with a copy (which copy shall not constitute notice) to Fenwick & West LLP, Unit 908, 9th Floor, Kerry Parkside Office, No. 1155 Fang Dian Road, Pudong New Area, Shanghai 201204, People’s Republic of China, Attention: Niping Wu.
19. Submission to Jurisdiction; Appointment of Agents for Service. (a) The Company and the Selling Shareholders irrevocably submit to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York (the “Specified Courts”) over any suit, action or proceeding arising out of or relating to this Agreement, the Prospectus, the Registration Statement or the offering of the Shares (each, a “Related Proceeding”). The Company and the Selling Shareholders irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company and the Selling Shareholders have or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.
(b) (i) The Company hereby irrevocably consents to accept service of process in any Related Proceeding at its office at 225 West Wacker Drive, Suite 3000, Chicago, Illinois 60606, and agrees that service of process in any such Related Proceeding may be made upon it at such office; and (ii) the Selling
33
Shareholders hereby irrevocably appoint Corporate Creations Network, with offices at 99 Hudson Street, 5th Floor, New York, New York 10013, as their agent for service of process in any Related Proceeding and agree that service of process in any such Related Proceeding may be made upon them at the office of such agent. The Company and the Selling Shareholders waive, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Selling Shareholders represent and warrant that such agent has agreed to act as the Selling Shareholders’ agent for service of process, and the Selling Shareholders agree to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
20. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriter could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company and the Selling Shareholders with respect to any sum due from them to the Underwriter or any person controlling the Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by the Underwriter or controlling person of any sum in such other currency, and only to the extent that the Underwriter or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to the Underwriter or controlling person hereunder, the Company and the Selling Shareholders agree as a separate obligation and notwithstanding any such judgment, to indemnify the Underwriter or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to the Underwriter or controlling person hereunder, the Underwriter or controlling person agrees to pay to the Company and the Selling Shareholders an amount equal to the excess of the dollars so purchased over the sum originally due to the Underwriter or controlling person hereunder.
21. Taxes. (a) If any sum payable by the Company and/or the Selling Shareholders under this Agreement is subject to tax in the hands of the Underwriter or taken into account as a receipt in computing the taxable income of that Underwriter (excluding net income taxes on underwriting commissions payable under, or in connection with, this Agreement or the matters contemplated hereunder), the relevant payer shall increase the sum payable to the Underwriter under this Agreement to such sum as will ensure that the Underwriter shall be left with the sum it would have had in the absence of such tax. (b) Where the Company and the Selling Shareholders are obliged to pay any fee, commission or other sum to the Underwriter in connection with this Agreement and any amount of value added, sales, turnover or similar tax (“VAT”) is properly charged on it, the relevant payer shall (except where the reverse charge procedure applies), in addition to that payment, pay an amount equal to the VAT, subject to receipt, where applicable, of a valid VAT invoice. Where, pursuant to this Agreement,
34
a sum is paid by the Company and/or the Selling Shareholders to the Underwriter by way of reimbursement of a cost, charge or expense, the relevant payer shall also pay to such payee in respect of VAT, an amount equal to any VAT charged to the payee in respect of that cost, charge or expense and which such payee determines is not recoverable by the payee (or the representative member of its VAT group) by repayment or credit.
[Remainder of page intentionally left blank]
35
| Very truly yours, | ||||
| CUSHMAN & WAKEFIELD PLC | ||||
| By: | /s/ Brett White | |||
| Name: | Brett White | |||
| Title: | Chief Executive Officer | |||
| TPG Drone Co-Invest, L.P. | ||||
| By: TPG Asia Advisors VI, Inc. its general partner | ||||
| By: | /s/ David Reintjes | |||
| Name: | David Reintjes | |||
| Title: | Vice President | |||
| TPG Drone Investment, L.P. | ||||
| By: TPG Asia Advisors VI, Inc. | ||||
| its general partner | ||||
| By: | /s/ David Reintjes | |||
| Name: | David Reintjes | |||
| Title: | Vice President | |||
[Signature Page to Underwriting Agreement]
| Ontario Teachers’ Pension Plan Board | ||||
| By: | /s/ Rajeev Ruparelia | |||
| Name: | Rajeev Ruparelia | |||
| Title: | Managing Director | |||
| PAGAC Drone Holding I LP | ||||
| By: PAGAC Drone Holding GP I Limited | ||||
| By: | /s/ David J. Kim | |||
| Name: | David J. Kim | |||
| Title: | Authorized Signatory | |||
[Signature Page to Underwriting Agreement]
| Accepted as of the date hereof. | ||||
| By: | Goldman Sachs & Co. LLC | |||
| By: | /s/ Adam T. Greene | |||
| Name: | Adam T. Greene | |||
| Title: | Managing Director | |||
[Signature Page to Underwriting Agreement]
SCHEDULE I
| Selling Shareholder |
Firm Shares | Additional Shares | ||||||
| TPG Drone Investment, L.P. |
2,397,807 | 475,359 | ||||||
| TPG Drone Co-Invest, L.P. |
1,043,580 | 206,887 | ||||||
| Ontario Teachers’ Pension Plan Board |
3,489,329 | 209,276 | ||||||
| PAGAC Drone Holding I LP |
3,069,284 | 608,478 | ||||||
|
|
|
|
|
|||||
| Total: |
10,000,000 | 1,500,000 | ||||||
SCHEDULE II
| Underwriter |
Number of Firm Shares To Be Purchased |
|||
| Goldman Sachs & Co. LLC |
10,000,000 | |||
SCHEDULE III
Time of Sale Prospectus
| 1. | Base Prospectus, dated November 12, 2019. |
| 2. | Issuer Free Writing Prospectus, dated June 2, 2021. |
| 3. | Preliminary Prospectus Supplement, dated June 2, 2021. |
| 4. | The following information: |
The number of Firm Shares is 10,000,000.
The number of Additional Shares is 1,500,000.
The public offering price per share for the Shares is $18.75.
SCHEDULE IV
The following persons shall execute a lock-up agreement in the form set forth on Exhibit A hereto:
| • | TPG Drone Investment, L.P.; |
| • | TPG Drone Co-Invest, L.P.; |
| • | PAGAC Drone Holding I LP; |
| • | Ontario Teachers’ Pension Plan Board; |
| • | Angelique Brunner; |
| • | Jonathan Coslet; |
| • | Timothy Dattels; |
| • | Anthony Miller; |
| • | Lincoln Pan; |
| • | Rajeev Ruparelia; |
| • | Billie Williamson; |
| • | Brett White; |
| • | Neil Johnston; |
| • | John Forrester; |
| • | Richard McGinn; and |
| • | Jodie McLean |
EXHIBIT A
[FORM OF LOCK-UP LETTER]
Goldman Sachs & Co LLC
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Ladies and Gentlemen:
The undersigned understands that Goldman Sachs & Co. LLC (the “Underwriter”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Cushman & Wakefield plc, a public limited company organized under the laws of England and Wales (the “Company”), and certain selling shareholders named in Schedule I of the Underwriting Agreement (the “Selling Shareholders”) providing for the public offering (the “Public Offering”) by the Underwriter of ordinary shares, nominal value $0.10 per share (the “Shares”), pursuant to a Registration Statement on Form S-3 filed with the U.S. Securities and Exchange Commission (the “Commission”).
To induce the Underwriter to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not, during the period commencing on the date hereof and continuing until, and including, the date that is 60 days after the date of the final prospectus supplement (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 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 Shares, or publicly announce its intention to enter into any such transaction, 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 Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:
| (a) | the Shares to be sold in the Public Offering, |
| (b) | transactions relating to Shares 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 and the rules and regulations of the Commission thereunder shall be required or shall be voluntarily made in connection with subsequent sales of Shares or other securities acquired in such open market transactions, |
| (c) | (i) transfers of Shares or any security convertible into Shares as a bona fide gift, (ii) transfers of Shares as a result of the operation of law through estate, other testamentary document or intestate succession, (iii) transfers of Shares to any immediate family member of the undersigned or any trust for the direct or indirect benefit of the undersigned or any immediate family member of the undersigned (for purposes of this letter, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin) or (iv) the transfer of Shares or any security convertible into or exercisable or exchangeable for Shares pursuant to a qualified domestic order or in connection with a divorce settlement, |
| (d) | if the undersigned is a corporation, partnership or other business entity, distributions or transfers of Shares or any security convertible into Shares to limited partners, general partners, members, nominees or shareholders of the undersigned or its direct or indirect affiliates or other entities controlled or managed by the undersigned not involving a disposition for value, |
| (e) | if permitted by the Company, the establishment of or amendment to a written trading plan pursuant to Rule 10b5-1 under the Exchange Act (a “Plan”) for the transfer of Shares, provided that no public disclosure of such establishment or amendment of such Plan shall be required or shall be made during the Restricted Period, |
| (f) | sales pursuant to a Plan established before the date of the Prospectus, |
| (g) | the exercise or settlement of stock options, restricted stock units or other equity awards pursuant to any plan or agreement granting such an award to an employee or other service provider of the Company or its affiliates (and any related transfer to the Company of Ordinary Shares necessary to generate such amount of cash needed for the payment of taxes, including estimated taxes, due as a result of such settlement or exercise whether by means of a “net settlement” or otherwise), or |
| (h) | transfers of Shares to the Company in connection with the repurchase by the Company pursuant to a management stockholders agreement or other agreement in effect as of the date hereof and pursuant to which such Shares were issued or are subject, |
provided that in the case of any transfer or distribution pursuant to clauses (c) or (d), each transferee or distributee shall sign and deliver to the Underwriter a lock-up letter substantially in the form of this letter if it has not previously done so; and provided, further, that in the case of any transfer, sale or distribution pursuant to clause (c) through (h), no filing under Section 16(a) of the Exchange Act and the rules and regulations of the Commission thereunder, reporting a reduction in beneficial ownership of Shares, shall be required or shall be voluntarily made during the Restricted Period, other than:
| i. | a filing made on Form 4 solely in connection with sales described in clause (f) above, which shall specify that such sale was made pursuant to a Plan entered into on a date before the date of the Prospectus; |
| ii. | a filing made on Form 4 solely in connection with transfers described in clause (g) above, which shall specify in such Form 4 that (a) the exercise or settlement of stock options, restricted stock units or other equity awards or (b) the related transfer to the Company of Ordinary Shares, in each case as applicable, that required such filing of a Form 4, was (x) deemed to occur upon the cashless exercise of such securities or (y) for the purpose of paying the exercise price of such securities or for paying taxes (including estimated taxes) due as a result of the exercise of such exercises, as applicable, and in the case of clause (c) above, was a transfer to the Company; or |
| iii. | a filing on Form 5 made after the expiration of the Restricted Period. |
In addition, the undersigned agrees that, without the prior written consent of the Underwriter, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriter are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
This letter shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflict of laws that would result in the application of any law other than the laws of the State of New York. The undersigned agrees that any suit or proceeding arising in respect of this agreement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City and County of New York and the undersigned agrees to submit to the jurisdiction of, and to venue in, such courts.
The undersigned acknowledges and agrees that the Underwriter has not provided any recommendation or investment advice nor has the Underwriter solicited any action from the undersigned with respect to the Public Offering of the Shares and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and
agrees that, although the Underwriter may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in connection with the Public Offering, the Underwriter is not making a recommendation to you to participate in the Public Offering or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that the Underwriter is making such a recommendation.
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 among the Company, the Selling Shareholders and the Underwriter.
Notwithstanding anything to the contrary contained herein, this letter will automatically terminate and the undersigned will be released from all of his, her or its obligations hereunder upon the earliest to occur, if any, of (i) prior to the execution of the Underwriting Agreement, either the Company on the one hand, or the Underwriter on the other hand, advises the other in writing that it has determined not to proceed with the Public Offering, (ii) the withdrawal of the Registration Statement on Form S-3 related to the Public Offering, (iii) the Underwriting Agreement is executed but is terminated (other than the provisions thereof which survive termination) prior to payment for and delivery of the Shares to be sold thereunder, or (iv) July 31, 2021, in the event that the Underwriting Agreement has not been executed by such date; provided, however, that the Company may, by written notice to the undersigned prior to such date, extend such date for a period of up to three additional months.
[Signature page follows.]
| Very truly yours, |
|
|
| (Name) |
|
|
| (Address) |
[Signature Page to Lock-Up Agreement]
Exhibit 99.1
Cushman & Wakefield Announces Proposed Public Offering of Ordinary Shares by Selling Shareholders
CHICAGO—(BUSINESS WIRE), June 2, 2021 — Cushman & Wakefield plc (NYSE: CWK) (“Cushman & Wakefield”) announced today the launch of a proposed underwritten public offering of 10,000,000 ordinary shares. All of the ordinary shares are being offered by existing shareholders and Cushman & Wakefield will not receive any of the proceeds from the offering. The selling shareholders include funds affiliated with TPG, PAG Asia Capital and Ontario Teachers’ Pension Plan Board. The underwriter will have a 30-day option to purchase up to an additional 1,500,000 ordinary shares from the selling shareholders.
Goldman Sachs & Co. LLC is serving as sole underwriter for the offering.
An automatic shelf registration statement relating to the ordinary shares to be sold in the offering was filed with the Securities and Exchange Commission (“SEC”) on November 12, 2019 and became effective upon filing. The offering may be made only by means of a prospectus supplement and the accompanying prospectus. You may obtain these documents for free by visiting the SEC’s website at www.sec.gov. Additionally, copies of the preliminary prospectus supplement and accompanying prospectus may be obtained from Goldman Sachs & Co. LLC, Prospectus Department, 200 West Street, New York, NY 10282, telephone: 1-866-471-2526, facsimile: 212-902-9316 or by emailing Prospectus-ny@ny.email.gs.com. The final terms of the offering will be disclosed in a final prospectus supplement to be filed with the SEC.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, sale or solicitation would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Cushman & Wakefield plc
Cushman & Wakefield (NYSE: CWK) is a leading global real estate services firm that delivers exceptional value for real estate occupiers and owners. Cushman & Wakefield is among the largest real estate services firms with approximately 50,000 employees in over 400 offices and 60 countries. In 2020, the firm had revenue of $7.8 billion across core services of property, facilities and project management, leasing, capital markets, valuation and other services.
Forward-Looking Statements
All statements in this press release other than historical facts are forward-looking statements, which rely on a number of assumptions concerning future events, including whether or not the offering will be consummated. Such statements are also subject to a number of uncertainties and factors outside Cushman & Wakefield’s control. Such factors include, but are not limited to, uncertainty regarding and changes in global economic or market conditions and changes in government policies, laws, regulations and practices. Should any Cushman & Wakefield assumptions or these other uncertainties and factors materialize in ways that Cushman & Wakefield did not expect, actual results could differ materially from the forward-looking statements in this press release. While Cushman & Wakefield believes the assumptions underlying these forward-looking statements are reasonable under current circumstances, recipients should bear in mind that such assumptions are inherently uncertain. You are cautioned not to place undue reliance on such forward-looking statements or other information in this press release.
Contacts
Investor Relations Contact
Len Texter
Investor Relations
+1 312 338 7860
IR@cushwake.com
Media Contact
Aixa Velez
Corporate Communications
+1 312 424 8195
aixa.velez@cushwake.com
Exhibit 99.2
Cushman & Wakefield Announces Pricing of Public Offering of Ordinary Shares by Selling Shareholders
CHICAGO—(BUSINESS WIRE), June 2, 2021 — Cushman & Wakefield plc (NYSE: CWK) (“Cushman & Wakefield”) announced today the pricing of an underwritten public offering of 10,000,000 ordinary shares at a price to the public of $18.75 per share. All of the ordinary shares are being offered by existing shareholders and Cushman & Wakefield will not receive any of the proceeds from the offering. The selling shareholders include funds affiliated with TPG, PAG Asia Capital and the Ontario Teachers’ Pension Plan Board. The underwriter will have a 30-day option to purchase up to an additional 1,500,000 ordinary shares from the selling shareholders. The offering is expected to close on June 7, 2021, subject to customary closing conditions.
Goldman Sachs & Co. LLC is serving as sole underwriter for the offering.
An automatic shelf registration statement relating to the ordinary shares to be sold in the offering was filed with the Securities and Exchange Commission (“SEC”) on November 12, 2019 and became effective upon filing. The offering may be made only by means of a prospectus supplement and the accompanying prospectus. You may obtain these documents for free by visiting the SEC’s website at www.sec.gov. Additionally, copies of the final prospectus supplement, when available, may be obtained from Goldman Sachs & Co. LLC, Prospectus Department, 200 West Street, New York, NY 10282, telephone: 1-866-471-2526, facsimile: 212-902-9316 or by emailing Prospectus-ny@ny.email.gs.com.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, sale or solicitation would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Cushman & Wakefield plc
Cushman & Wakefield (NYSE: CWK) is a leading global real estate services firm that delivers exceptional value for real estate occupiers and owners. Cushman & Wakefield is among the largest real estate services firms with approximately 50,000 employees in over 400 offices and 60 countries. In 2020, the firm had revenue of $7.8 billion across core services of property, facilities and project management, leasing, capital markets, valuation and other services.
Forward-Looking Statements
All statements in this press release other than historical facts are forward-looking statements, which rely on a number of assumptions concerning future events, including whether or not the offering will be consummated. Such statements are also subject to a number of uncertainties and factors outside Cushman & Wakefield’s control. Such factors include, but are not limited to, uncertainty regarding and changes in global economic or market conditions and changes in government policies, laws, regulations and practices. Should any Cushman & Wakefield assumptions or these other uncertainties and factors materialize in ways that Cushman & Wakefield did not expect, actual results could differ materially from the forward-looking statements in this press release. While Cushman & Wakefield believes the assumptions underlying these forward-looking statements are reasonable under current circumstances, recipients should bear in mind that such assumptions are inherently uncertain. You are cautioned not to place undue reliance on such forward-looking statements or other information in this press release.
Contacts
Investor Relations Contact
Len Texter
Investor Relations
+1 312 338 7860
IR@cushwake.com
Media Contact
Aixa Velez
Corporate Communications
+1 312 424 8195
aixa.velez@cushwake.com
Exhibit 99.3
Information Relating to Part II.
| Item 14. | Other Expenses of Issuance and Distribution |
The expenses in connection with the offer and sale of 10,000,000 ordinary shares of Cushman & Wakefield plc, registered pursuant to the shelf Registration Statement on Form S-3 (Registration No. 333-234624) filed on November 12, 2019, other than underwriting discounts and commissions, are set forth in the following table. All amounts are estimated, except the Securities and Exchange Commission filing fee, which was paid in connection with the filing of the prospectus supplement, dated June 2, 2021, to the prospectus contained in the Registration Statement.
| Amount to be paid |
||||
| Securities and Exchange Commission registration fee |
$ | 23,525 | ||
| Printing expenses |
$ | 75,000 | ||
| Legal fees and expenses |
$ | 300,000 | ||
| Accounting fees and expenses |
$ | 75,000 | ||
| Miscellaneous fees and expenses |
$ | 26,475 | ||
|
|
|
|||
| Total |
$ | 500,000 | ||
|
|
|
|||