DREAM FINDERS HOMES, INC.
(a Delaware corporation)
[●] Shares of Class A Common Stock
and
DREAM FINDERS HOLDINGS, LLC
(a Florida limited liability company)
FORM OF UNDERWRITING AGREEMENT
Dated: January [●], 2021
DREAM FINDERS HOMES, INC.
(a Delaware corporation)
[●] Shares of Class A Common Stock
and
DREAM FINDERS HOLDINGS LLC
(a Florida limited liability company)
FORM OF UNDERWRITING AGREEMENT
January [●], 2021
BofA Securities, Inc.
RBC Capital Markets, LLC
BTIG, LLC
as Representatives of the several Underwriters
| c/o |
BofA Securities, Inc.
One Bryant Park
New York, NY 10036
RBC Capital Markets, LLC
200 Vesey Street
New York, NY 10281
BTIG, LLC
65 E. 55th Street
New York, NY 10022
|
|
Ladies and Gentlemen:
Dream Finders Homes, Inc., a Delaware corporation (the “Company”), confirms its agreement with BofA Securities, Inc. (“BofA”), RBC Capital Markets, LLC and
BTIG, LLC and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom BofA, RBC Capital Markets, LLC
and BTIG, LLC are acting as representatives (collectively, in such capacity, the “Representatives”), with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares
of Class A Common Stock, par value $[●] per share, of the Company (“Class A Common Stock” and collectively with all of the Company’s other classes of common stock, including the Company’s Class B common stock, par value $[●] per share, the “Common
Stock”) set forth in Schedule A hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of [●] additional shares of Class A Common
Stock. The aforesaid [●] shares of Class A Common Stock (the “Initial Securities”) to be purchased by the Underwriters and all or any part of the [●] shares of Class A Common Stock subject to the option described in Section 2(b) hereof (the “Option
Securities”) are herein called, collectively, the “Securities.”
Immediately prior to or concurrently with the Closing Time (as defined below), DFH Merger Sub LLC, a Delaware limited liability company and direct, wholly
owned subsidiary of the Company (“Merger Sub”), will merge with and into Dream Finders Holdings LLC, a Florida limited liability company (“DFH LLC”), with DFH LLC as the surviving entity, pursuant to the terms of that certain Agreement and Plan of
Merger and Reorganization among Merger Sub, the Company and DFH LLC, to be dated as of the Closing Time (the “Merger Agreement”). The transactions contemplated by the Merger Agreement and certain other related events and transactions described under
the heading “Corporate Reorganization” in the Registration Statement, the General Disclosure Package and the Prospectus are referred to herein as the “Corporate Reorganization.” Immediately following the Corporate Reorganization, (1) the Company will
be a holding company and the sole manager of DFH LLC, with no material assets other than 100% of the voting membership interests in DFH LLC, and (2) the holders of common units, non-voting common units and Series A preferred units of DFH LLC will
become stockholders of the Company, (3) the holders of the Series B preferred units of DFH LLC outstanding immediately prior to the Corporate Reorganization will hold all 7,143 of the outstanding Series B preferred units of DFH LLC, and (4) the holders
of the Series C preferred units of DFH LLC outstanding immediately prior to the Corporate Reorganization will hold all 26,000 of the outstanding Series C preferred units of DFH LLC.
The Company and DFH LLC each understand that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company and the Underwriters agree that up to [●] shares of the Initial Securities to be purchased by the Underwriters (the “Reserved Securities”)
shall be reserved for sale by Merrill Lynch, Pierce, Fenner & Smith Incorporated (an affiliate of BofA, hereinafter referred to as “Merrill Lynch”) to certain persons designated by the Company (the “Invitees”), as part of the distribution of the
Securities by the Underwriters, subject to the terms of this Agreement, the applicable rules, regulations and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and all other applicable laws, rules and regulations. The
Company solely determined, without any direct or indirect participation by the Underwriters or Merrill Lynch, the Invitees who will purchase Reserved Securities (including the amount to be purchased by such persons) sold by Merrill Lynch. To the
extent that such Reserved Securities are not orally confirmed for purchase by Invitees by 11:59 P.M. (New York City time) on the date of this Agreement, such Reserved Securities may be offered to the public as part of the public offering contemplated
hereby.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S‑1 (No. 333-251612), including the
related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company will prepare
and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations. The
information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is herein
called the “Rule 430A Information.” Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the
“Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule
462(b) Registration Statement. Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of
this Agreement, is herein called a “preliminary prospectus.” The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system or any successor system (“EDGAR”).
As used in this Agreement:
“Applicable Time” means [●] P.M., New York City time, on January [●], 2021 or such other time as agreed by the Company and BofA.
“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most
recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on Schedule B-1 hereto, all considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule
433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that
is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule B-2 hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section
5(d) of the 1933 Act.
“Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the 1933 Act.
SECTION 1.
Representations and Warranties.
(a)
Representations and Warranties by the Company and DFH LLC. Each of the
Company and DFH LLC represents and warrants, jointly and severally, to each Underwriter as of the date hereof, the Applicable Time, the Closing Time and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i)
Registration Statement and Prospectuses. Each of the Registration Statement and any amendment
thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 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 have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any) from the
Commission for additional information.
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, the Applicable Time, the
Closing Time and any Date of Delivery complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the
time each was filed with the Commission, and, in each case, at the Applicable Time, the Closing Time and any Date of Delivery complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each
preliminary prospectus delivered to the Underwriters for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(ii)
Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time,
on the date hereof, at the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. At the Applicable Time and any Date of Delivery, none of (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure
Package and (C) any individual Written Testing-the-Waters Communication, when considered together with the General Disclosure Package, 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. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any
filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, 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.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or
any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company or DFH LLC by any Underwriter through BofA
expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting–Commissions and Discounts” and the information in the second, third and fourth
paragraphs under the heading “Underwriting–Price Stabilization, Short Positions and Penalty Bids” in each case contained in the Prospectus (collectively, the “Underwriter Information”).
(iii)
Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. The Company has made available a Bona Fide Electronic Road Show in
compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities.
(iv)
Testing-the-Waters Materials. Neither the Company nor DFH LLC (A) has engaged in any Testing-the-Waters
Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the 1933 Act or institutions that are accredited investors
within the meaning of Rule 501 under the 1933 Act and (B) has authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company and DFH LLC reconfirm that the Representatives have been authorized to act on
their behalf in undertaking Testing-the-Waters Communications. Neither the Company nor DFH LLC has distributed any Written Testing-the-Waters Communications other than those listed on Schedule B-3 hereto.
(v)
Company Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective
amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities
and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an
ineligible issuer.
(vi)
Emerging Growth Company Status. From the time of the initial confidential submission of the Registration
Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any Person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an
“emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”).
(vii)
Independent Accountants (Company and DFH LLC). PricewaterhouseCoopers LLP, who certified the financial
statements and supporting schedules of the Company and DFH LLC and their consolidated subsidiaries, each included in the Registration Statement, the General Disclosure Package and the Prospectus, is an independent public accountant with respect to
the Company and DFH LLC, as required by the 1933 Act, the 1933 Act Regulations and the Public Company Accounting Oversight Board.
(viii)
Independent Accountants (H&H). Yount, Hyde and Barbour, P.C., who certified the financial statements
and supporting schedules of H&H Constructors, Inc. (“H&H Homes”) and its consolidated subsidiaries, each included in the Registration Statement, the General Disclosure Package and the Prospectus, is an independent public accountant with
respect to H&H Homes, as required by the 1933 Act, the 1933 Act Regulations and the Public Company Accounting Oversight Board.
(ix)
Financial Statements; Non-GAAP Financial Measures. The financial statements included in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and DFH LLC and their consolidated subsidiaries and of H&H Homes and its
consolidated subsidiaries, as applicable, at the dates indicated and the statement of operations, stockholders’ equity and cash flows of DFH LLC and its consolidated subsidiaries and of H&H Homes and its consolidated subsidiaries, as applicable,
for the periods specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any,
present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present
fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein. The pro forma financial statements and the related notes thereto included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as
included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. All
disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the
Securities Exchange Act of 1934, as amended (the “1934 Act”) and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable.
(x)
No Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as
of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs, properties or
business prospects of the Company, DFH LLC and their subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company,
DFH LLC or any of their subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company, DFH LLC and their subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution
of any kind declared, paid or made by either the Company or DFH LLC on any class of its capital stock.
(xi)
Good Standing of the Company and DFH LLC. Each of the Company and DFH LLC has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization and has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; and each of the Company and DFH LLC is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(xii)
Good Standing of Subsidiaries. Each “significant subsidiary” of DFH LLC (as such term is defined in Rule
1-02 of Regulation S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar
power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material
Adverse Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock or other equity interests of each Subsidiary has been duly authorized and
validly issued, is fully paid and non‑assessable and is owned by DFH LLC, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital
stock of any Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only subsidiaries of DFH LLC are (A) the subsidiaries listed on Exhibit 21 to the Registration Statement and (B)
certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X. Prior to the Corporate Reorganization, the only subsidiary of the Company is
Merger Sub.
(xiii)
Capitalization. The authorized, issued and outstanding shares of capital stock of the DFH LLC are as set
forth in the Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit or equity incentive plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration
Statement, the General Disclosure Package and the Prospectus). At the Closing Time, the outstanding shares of capital stock of the Company will have been duly authorized and will be validly issued and fully paid and non‑assessable. None of the
outstanding shares of capital stock of the Company will have been issued in violation of the preemptive or other similar rights of any securityholder of the Company.
(xiv)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the
Company and DFH LLC.
(xv)
Authorization and Description of Securities. The Securities to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly
issued and fully paid and non‑assessable; and the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company. The Common Stock conforms to all statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal liability by reason of being
such a holder.
(xvi)
Registration Rights. There are no persons with registration rights or other similar rights to have any
securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company or DFH LLC under the 1933 Act pursuant to this Agreement, other than those rights that have been disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus and have been waived.
(xvii)
Absence of Violations, Defaults and Conflicts. None of the Company, DFH LLC nor any of their
subsidiaries is (A) in violation of its charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, DFH LLC or any of their subsidiaries is a party or by which it or any of them may be bound or to which any of the properties or assets of the Company,
DFH LLC or any subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation,
judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company, DFH LLC or any of its subsidiaries or any of their respective
properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the Merger
Agreement and the consummation of the transactions contemplated herein, therein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities, the use of the proceeds from the
sale of the Securities as described therein under the caption “Use of Proceeds” and the consummation of the Corporate Reorganization) and compliance by the Company and DFH LLC with its obligations hereunder have been duly authorized by all necessary
corporate or similar action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties or assets of the Company, DFH LLC or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges
or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Company, DFH LLC or any
of their subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, DFH LLC or any of its subsidiaries.
(xviii)
Absence of Labor Dispute. No labor dispute with the employees of the Company, DFH LLC or any of their
subsidiaries exists or, to the knowledge of the Company and DFH LLC, is imminent that would result in a Material Adverse Effect.
(xix)
Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package
and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Company and DFH LLC, threatened, against or affecting the Company, DFH LLC or any
of their subsidiaries, or to which any of their respective properties or assets is, or to the knowledge of the Company or DFH LLC, would reasonably be expected to be, subject, which might result in a Material Adverse Effect, or which might materially
and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by either the Company or DFH LLC of its obligations hereunder. There are no current or pending actions, suits, proceedings, inquiries or
investigations before or brought by any Governmental Entity that are required to be described in the Registration Statement, the General Disclosure Package and the Prospectus pursuant to the 1934 Act that are not so described therein.
(xx)
Accuracy of Exhibits. There are no contracts or documents which are required to be described in the
Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(xxi)
Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the Company or DFH LLC of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or
the consummation of the transactions contemplated by this Agreement, except (A) such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Nasdaq Global Select Market (the “Nasdaq”), state
securities laws, the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”), (B) such as have been obtained under the laws and regulations of jurisdictions outside the United States in which the Reserved Securities were offered or (C)
in connection with the Corporate Reorganization.
(xxii)
Possession of Licenses and Permits. The Company, DFH LLC and their subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by them, except where the failure so to possess would not,
singly or in the aggregate, result in a Material Adverse Effect. The Company, DFH LLC and their subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force
and effect would not, singly or in the aggregate, result in a Material Adverse Effect. None of the Company, DFH LLC nor any of their subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxiii)
Title to Property. The Company, DFH LLC and their subsidiaries have good and marketable title to all real
property owned by them and good title to all other properties owned by them that are material to the business of the Company, DFH LLC and its subsidiaries, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, 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, DFH LLC or any of their subsidiaries; and all of the leases and subleases material to the business of the Company, DFH LLC and their subsidiaries, considered as
one enterprise, and under which the Company, DFH LLC or any of their subsidiaries holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect.
(xxiv)
Possession of Intellectual Property. Each of the Company, DFH LLC and their subsidiaries own or possess,
or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know‑how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and none of the Company, DFH LLC nor any of their subsidiaries has received any
notice of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property that would render any Intellectual Property invalid or inadequate to protect the interest of the Company, DFH LLC or any of their
subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
(xxv)
Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and
the Prospectus or as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) none of the Company, DFH LLC nor any of their subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company, DFH LLC and their subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company and DFH LLC, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating to any Environmental Law against the Company, DFH LLC or any of their subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company, DFH LLC or any of their subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxvi)
Accounting Controls. The Company, DFH LLC and their subsidiaries, on a consolidated basis, maintain a
system of effective internal control over financial reporting (as defined under Rule 13‑a15 and 15d‑15 under the regulations of the Commission under the 1934 Act (“1934 Act Regulations”)) and a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and
to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the most recent audited fiscal year, there has been (1)
no material weakness in the Company’s or DFH LLC’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s or DFH LLC’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s or DFH LLC’s internal control over financial reporting.
(xxvii)
Compliance with the Sarbanes-Oxley Act. The Company has taken all necessary actions to ensure that, upon
the effectiveness of the Registration Statement, it will be in compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the
“Sarbanes-Oxley Act”) that are then in effect, and is actively taking steps to ensure that it will be in compliance with other provisions of the Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such provisions, or which will
become applicable to the Company at all times after the effectiveness of the Registration Statement.
(xxviii)
Payment of Taxes. All United States federal income tax returns of the Company and DFH LLC required by law
to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been
provided. The Company, DFH LLC and their subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, federal, state, local or other law except insofar as the failure to file such returns
would not result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company, DFH LLC and their subsidiaries, except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been established by the Company or DFH LLC, as applicable. The charges, accruals and reserves on the books of the Company and DFH LLC in respect of any income and corporation tax liability for any years
not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.
(xxix)
Insurance. DFH LLC and its subsidiaries carry or are entitled to the benefits of insurance, with
financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. DFH LLC has
no reason to believe that it or any of its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither of DFH LLC nor any of its subsidiaries has been denied any insurance coverage that it has sought or for which it has applied.
(xxx)
Investment Company Act. Neither the Company nor DFH LLC is required, and upon the issuance and sale of
the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will be required, to register as an “investment company” under the
Investment Company Act of 1940, as amended (the “1940 Act”).
(xxxi)
Absence of Manipulation. None of the Company, DFH LLC nor any of their affiliates has taken, nor will
take, directly or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Securities or to result in a violation of Regulation M under the 1934 Act.
(xxxii)
Foreign Corrupt Practices Act. None of the Company, DFH LLC nor any of their subsidiaries or, to the
knowledge of the Company and DFH LLC, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company, DFH LLC or any of their subsidiaries is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official”
(as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and each of the Company and DFH LLC and, to the knowledge of the Company and DFH LLC,
its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxiii)
Money Laundering Laws. The operations of the Company, DFH LLC and their subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity
involving the Company, DFH LLC or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company and DFH LLC, threatened.
(xxxiv)
OFAC. None of the Company, DFH LLC nor any of their subsidiaries or, to the knowledge of the Company
and DFH LLC, any director, officer, agent, employee, affiliate or representative of the Company, DFH LLC or any of their subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by
the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European Union, Her Majesty’s Trasury, or other relevant sanctions
authority (collectively, “Sanctions”), nor is the Company or DFH LLC located, organized or resident in a country or territory that is the subject of Sanctions; and neither the Company nor DFH LLC will directly or indirectly use the proceeds of the
sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the
time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxxv)
Sales of Reserved Securities. In connection with any offer and sale of Reserved Securities outside the
United States, each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time it was filed, complied and will comply in all material respects with any applicable laws or regulations of foreign jurisdictions in which
the same is distributed. The Company has not offered, or caused the Representatives or Merrill Lynch to offer, Reserved Securities to any person with the specific intent to unlawfully influence (i) a customer or supplier of the Company or any of its
affiliates to alter the customer’s or supplier’s level or type of business with any such entity or (ii) a trade journalist or publication to write or publish favorable information about the Company or any of its affiliates, or their respective
businesses or products.
(xxxvi)
Lending Relationship. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, neither the Company nor DFH LLC (i) has any material lending or other relationship with any bank or lending affiliate of any Underwriter nor (ii) intends to use any of the proceeds from
the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
(xxxvii)
Statistical and Market-Related Data. Any statistical and market-related data included in the Registration
Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company and DFH LLC believe, after reasonable inquiry, to be reliable and accurate and, to the extent required, the Company has obtained the
written consent to the use of such data from such sources.
(xxxviii)
No Rated Securities. None of the Company, DFH LLC nor their subsidiaries have any debt securities or
preferred stock that are rated by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).”
(xxxix)
Cybersecurity. (A) There has been no security breach or incident, unauthorized access or disclosure, or
other compromise of or relating to the Company, DFH LLC or their subsidiaries information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees,
suppliers, vendors and any third party data maintained, processed or stored by the Company, DFH LLC and their subsidiaries, and any such data processed or stored by third parties on behalf of the Company, DFH LLC and their subsidiaries), equipment or
technology (collectively, “IT Systems and Data”); (B) none of the Company, DFH LLC nor their subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could result in, any security breach or
incident, unauthorized access or disclosure or other compromise to their IT Systems and Data and (C) the Company, DFH LLC and their subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and
protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. Except as would not, singly or in the
aggregate, result in a Material Adverse Effect, the Company, DFH LLC and their subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(xl)
Merger Sub. Prior to the Corporate Reorganization, the only subsidiary of the Company is Merger Sub. Prior
to the Corporate Reorganization, Merger Sub, (a) since the date of incorporation, has not owned any assets, carried on any business or conducted any operations, (b) is not and has not ever been a party to or otherwise bound by any contract to which
the Company or DFH LLC is not a party, (c) does not and has not ever had any employees or independent contractors, (d) does not have any subsidiaries or investments, and (e) has no liabilities or obligations of any nature, whether known or unknown,
accrued, contingent, asserted or otherwise.
(xli)
Corporate Reorganization. (A) Prior to the Corporate Reorganization, the Company has not conducted any
activities other than in connection with its incorporation and in preparation for the offering of the Securities; and (B) the Merger Agreement has been duly authorized, executed and delivered by the Company, DFH LLC and Merger Sub.
(b)
Officer’s Certificates. Any certificate signed by any officer of the
Company, DFH LLC or any of their subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company and DFH LLC to each Underwriter as to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing.
(a)
Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price
per share set forth in Schedule A, that number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as BofA in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b)
Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Class A Common Stock, at the price
per share set forth in Schedule A, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted may be exercised
for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to
such adjustments as BofA in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(c)
Payment. Payment of the purchase price for, and delivery of certificates or
security entitlements for, the Initial Securities shall be made at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, or at such other place as shall be agreed upon by the Representatives and the Company, at
9:00 A.M. (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other
time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of
certificates or security entitlements for, such Option Securities shall be made at the above‑mentioned offices, or at such other place as shall be agreed upon by the Representative and the Company, on each Date of Delivery as specified in the notice
from BofA to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the
Representatives for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. BofA, individually and not as representative of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3.
Covenants of the Company and DFH LLC. Each of the Company and DFH LLC covenants, jointly and severally, with
each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests. The Company,
subject to Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or
any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will
effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order,
prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b)
Continued Compliance with Securities Laws. The Company will comply with the
1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a
prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an 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) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure
Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such
amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall object. The Company will furnish to the Underwriters such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(c)
Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S‑T.
(d)
Delivery of Prospectuses. The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S‑T.
(e)
Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that neither the Company nor DFH LLC shall be obligated to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f)
Rule 158. The Company will timely file such reports pursuant to the 1934
Act, as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(g)
Use of Proceeds. The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h)
Listing. The Company will use its best efforts to effect and maintain the
listing of the Class A Common Stock (including the Securities) on the Nasdaq.
(i)
Restriction on Sale of Securities. During a period of 180 days from the date
of the Prospectus, each of the Company and DFH LLC will not, without the prior written consent of BofA, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file or confidentially submit any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued by the Company in connection with the Corporate Reorganization or upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration
Statement, the General Disclosure Package and the Prospectus or (D) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure
Package and the Prospectus.
(j)
Lock-up Release. If BofA, in its sole discretion, agrees to release or waive
the restrictions set forth in a lock-up agreement described in Section 5(i) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective
date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two business days before the effective date of the
release or waiver.
(k)
Reporting Requirements. The Company, during the period when a Prospectus
relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report the use of proceeds from the issuance of the Shares as may be required under Rule 463 under the 1933 Act.
(l)
Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains
the prior written consent of the Representatives, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof,
required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule B-2 hereto and any “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or
deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the
Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(m)
Certification Regarding Beneficial Owners. The Company will deliver to the
Representatives, on the date of execution of this Agreement, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to
provide such additional supporting documentation as the Representatives may reasonably request in connection with the verification of the foregoing certification.
(n)
Compliance with FINRA Rules. The Company hereby agrees that it will ensure
that the Reserved Securities will be restricted as required by FINRA or the FINRA rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of this Agreement. Merrill Lynch will notify the Company
as to which persons will need to be so restricted. At the request of the Underwriters or Merrill Lynch, the Company will direct the transfer agent to place a stop transfer restriction upon such securities for such period of time. Should the Company
release, or seek to release, from such restrictions any of the Reserved Securities, the Company agrees to reimburse the Underwriters and Merrill Lynch for any reasonable expenses (including, without limitation, legal expenses) they incur in
connection with such release.
(o)
Testing-the-Waters Materials. If at any time following the distribution of any Written Testing-the-Waters
Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense,
such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(p)
Emerging Growth Company Status. The Company will promptly notify the Representatives if the Company ceases to
be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the 1933 Act and (ii) completion of the 180-day restricted period referred to in Section 3(i).
SECTION 4.
Payment of Expenses.
(a)
Expenses. The Company and DFH LLC, jointly and severally, will pay or cause
to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each
amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates or security entitlements for the Securities to the Underwriters, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s and DFH LLC’s counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company and DFH LLC relating to investor presentations on any “road
show” undertaken in connection with the marketing of the Securities, including without limitation, 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, travel and lodging expenses of the representatives and officers of the Company and DFH LLC and any such consultants, and the cost of aircraft and other transportation chartered in connection with the road show (provided that 50% of the
cost of any aircraft chartered in connection with the road show shall be paid by the Underwriters and 50% of the cost of any aircraft chartered in connection with the road show shall be paid by the Company), (viii) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities; provided, such fees and disbursements of counsel to the Underwriters shall not exceed $30,000 in the aggregate, (ix) the fees and expenses incurred in
connection with the listing of the Securities on the Nasdaq, (x) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any
contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in the third sentence of Section 1(a)(ii) and (xi) all costs and expenses of the Underwriters and Merrill Lynch, including the fees and
disbursements of counsel for the Underwriters and counsel for Merrill Lynch, in connection with matters related to the Reserved Securities which are designated by the Company for sale to Invitees.
(b)
Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i) or (iii) or Section 10 hereof, the Company and DFH LLC shall reimburse the Underwriters for all of their out‑of‑pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5.
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject
to the accuracy of the representations and warranties of the Company and DFH LLC contained herein or in certificates of any officer of the Company, DFH LLC or any of their subsidiaries delivered pursuant to the provisions hereof, to the performance
by each of the Company and DFH LLC, jointly and severally, of its covenants and other obligations hereunder, and to the following further conditions:
(a)
Effectiveness of Registration Statement; Rule 430A Information. The
Registration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued
under the 1933 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 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. A prospectus containing the Rule 430A Information 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.
(b)
Opinion of Counsel for Company and DFH LLC. At the Closing Time, the
Representatives shall have received the favorable opinion and negative assurance letter, dated the Closing Time, of Baker Botts L.L.P., counsel for the Company and DFH LLC, in form and substance satisfactory to counsel for the Underwriters.
(c)
Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinion and negative assurance letter, dated the Closing Time, of Davis Polk & Wardwell LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the
other Underwriters with respect to such matters as the Representatives may require. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General
Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(d)
Officers’ Certificate. At the Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings,
business affairs, properties or business prospects of the Company, DFH LLC and their subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of
the Chief Executive Officer or the President of each of the Company and DFH LLC and of the chief financial or chief accounting officer of each of the Company and DFH LLC, dated the Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company and DFH LLC in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) each of the Company and DFH LLC has
complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued,
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 have been instituted or are pending or, to their knowledge, contemplated.
(e)
Accountant’s Comfort Letters. At the time of the execution of this
Agreement, the Representatives shall have received from each of PricewaterhouseCoopers LLP and Yount, Hyde and Barbour, P.C. a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced
copies of each such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial statements and certain financial
information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f)
Bring-down Comfort Letter. At the Closing Time, the Representatives shall
have received from each of PricewaterhouseCoopers LLP and Yount, Hyde and Barbour, P.C. a letter, dated as of the Closing Time, to the effect that it reaffirms the statements made in the respective letters furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more than two business days prior to the Closing Time.
(g)
Approval of Listing. At the Closing Time, the Securities shall have been
approved for listing on the Nasdaq, subject only to official notice of issuance.
(h)
No Objection. FINRA has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(i)
Lock-up Agreements. At the date of this Agreement, the Representatives shall
have received an agreement substantially in the form of Exhibit A hereto signed by the directors and officers of the Company and DFH LLC and persons listed on Schedule C hereto.
(j)
CFO Certificate. The Representatives shall have received, on each of the date
hereof and at the Closing Time, a certificate dated the date hereof or the Closing Time, as the case may be, in form and substance satisfactory to the Representatives, from the Chief Financial Officer of the Company and DFH LLC as to the accuracy of
certain financial and other information included in the Registration Statement, the General Disclosure Package and the Prospectus.
(k)
Corporate Reorganization. Prior to or concurrently with the Closing Time, the
Corporate Reorganization shall have been completed on the terms described in the Registration Statement, the Disclosure Package and the Prospectus. The Amended and Restated Certificate of Incorporation of the Company shall have been filed with the
Secretary of State for the State of Delaware and shall be in full force and effect.
(l)
Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the
Company, DFH LLC and any of their subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i)
Officers’ Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President
of the Company and DFH LLC and of the chief financial or chief accounting officer of the Company and DFH LLC confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(ii)
Opinion of Counsel for Company and DFH LLC. If requested by the Representatives, the favorable
opinion and negative assurance letter of Baker Botts L.L.P., counsel for the Company and DFH LLC, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii)
Opinion of Counsel for Underwriters. If requested by the Representatives, the favorable opinion and
negative assurance letter of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(c) hereof.
(v)
Bring-down Comfort Letter. If requested by the Representatives, a letter from each of
PricewaterhouseCoopers LLP and Yount, Hyde and Barbour, P.C., in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the respective letter furnished to the
Representatives pursuant to Section 5(e) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than two business days prior to such Date of Delivery.
(vi)
CFO Certificate. A certificate, dated such Date of Delivery, of the Chief Financial Officer of the Company
and DFH LLC in form and substance satisfactory to the Representatives.
(m)
Additional Documents. At the Closing Time and at each Date of Delivery (if
any) counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and DFH LLC in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(n)
Termination of Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to
purchase the relevant Option Securities, may be terminated by the Representatives by notice to the Company and DFH LLC at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 14, 15 , 16 and 17 shall survive any such termination and remain in full force and effect.
SECTION 6.
Indemnification.
(a)
Indemnification of Underwriters. Each of the Company and DFH LLC agrees,
jointly and severally, to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written
Testing-the-Waters Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any materials or information provided to investors by, or with the approval of, the Company or DFH LLC in
connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company or DFH LLC (whether in person or electronically), or the omission or alleged
omission in any preliminary prospectus, Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company or DFH LLC;
(iii)
against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by
BofA), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Underwriter Information.
(b)
Indemnification of Company, DFH LLC, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, DFH LLC, their directors, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company or DFH LLC within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Underwriter Information.
(c)
Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by BofA, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company or
DFH LLC. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii)
or settlement of any claim in connection with any violation referred to in Section 6(e) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e)
Indemnification for Reserved Securities. In connection with the offer and
sale of the Reserved Securities, the Company agrees to indemnify and hold harmless the Underwriters, their Affiliates (including Merrill Lynch) and selling agents and each person, if any, who controls any Underwriter or Merrill Lynch within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and all loss, liability, claim, damage and expense (including, without limitation, any legal or other expenses reasonably incurred in connection with
defending, investigating or settling any such action or claim), as incurred, (i) arising out of the violation of any applicable laws or regulations of foreign jurisdictions where Reserved Securities have been offered, (ii) arising out of any untrue
statement or alleged untrue statement of a material fact contained in any other material prepared by or with the consent of the Company for distribution to Invitees in connection with the offering of the Reserved Securities 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; provided, however, that no indemnification shall be available under this clause (ii) for any loss,
liability, claim, damage or expense arising out of or based upon any untrue statement or omission or alleged untrue statement or omission in any material prepared by or with the consent of the Company for distribution to Invitees in connection with
the offering of the Reserved Securities in reliance upon and in conformity with written information furnished by the Underwriters or their affiliates expressly for use therein, (iii) caused by the failure of any Invitee to pay for and accept delivery
of Reserved Securities which have been orally confirmed for purchase by any Invitee by 11:59 P.M. (New York City time) on the date of the Agreement or (iv) related to, or arising out of or in connection with, the offering of the Reserved Securities,
except that this clause (iv) shall not apply to the extent that such loss, liability, claim, damage or expense is finally judicially determined to have resulted primarily from the bad faith, gross negligence or willful misconduct of Merrill Lynch.
SECTION 7.
Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and DFH LLC, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and DFH LLC, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions, or in connection with any violation of the nature referred to in Section 6(e) hereof,
which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and DFH LLC, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and DFH LLC, on
the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover
of the Prospectus.
The relative fault of the Company and DFH LLC, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or DFH LLC, on the one hand, or by the Underwriters, on the other
hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or any violation of the nature referred to in Section 6(e) hereof.
The Company, DFH LLC and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Shares underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company and DFH LLC, each officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company or DFH LLC within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company and DFH LLC. The Underwriters’ respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8.
Representations, Warranties and Agreements to Survive. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the Company, DFH LLC or any of their subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company or DFH LLC and (ii) delivery of and payment for the Securities.
SECTION 9.
Termination of Agreement.
(a)
Termination. The Representatives may terminate this Agreement, by notice to
the Company and DFH LLC, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company, DFH LLC and their subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make
it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq, or (iv) if trading generally on the NYSE MKT or the New York Stock Exchange or in the Nasdaq has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b)
Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15, 16 and 17 shall survive such termination and remain in full force and effect.
SECTION 10.
Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time
or a Date of Delivery to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more
of the non‑defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24‑hour period, then:
(i)
if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such
date, each of the non‑defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all
non‑defaulting Underwriters, or
(ii)
if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non‑defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other
documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to BofA at One Bryant Park, New York, New York 10036, attention of Syndicate Department (facsimile: (646) 855-3073), with a
copy to ECM Legal (facsimile: (212) 230-8730); notices to the Company and DFH LLC shall be directed to them at Dream Finders Homes, Inc., 14701 Philips Highway, Suite 300, Jacksonville, FL 32256, to the attention of the General Counsel (facsimile:
(904) 212-4704). All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
SECTION 12.
No Advisory or Fiduciary Relationship. Each of the Company and DFH LLC acknowledges and agrees that (a) the
purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the
Company and DFH LLC, on the one hand, and the several Underwriters, on the other hand, and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (b) in connection with the offering of the
Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, DFH LLC, any of their subsidiaries or their respective stockholders, creditors, employees or
any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or DFH LLC with respect to the offering of the Securities or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company, DFH LLC or any of their subsidiaries on other matters) and no Underwriter has any obligation to the Company or DFH LLC with respect to the offering of the Securities except the obligations
expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of each of the Company and DFH LLC, and (e) the Underwriters
have not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering of the Securities and the Company and DFH LLC have consulted their own respective legal, accounting, financial, regulatory and tax advisors to
the extent they deemed appropriate, and (f) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriters with
respect to any entity or natural person.
SECTION 13.
Recognition of the U.S. Special Resolution Regimes.
(a)
In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if
this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b)
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 13, 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.
SECTION 14.
Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the
Company and DFH LLC and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and DFH LLC and their
respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and DFH LLC and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15.
Trial by Jury. Each of the Company and DFH LLC (on its behalf and, to the extent permitted by applicable law,
on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION 16.
GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17.
Consent to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the
State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 18.
TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 19.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid
and effective for all purposes.
SECTION 20.
Effect of Headings. The Section headings herein are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and DFH LLC a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company and DFH LLC in accordance with its terms.
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Very truly yours,
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DREAM FINDERS HOMES, INC.
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By
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Title: |
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DREAM FINDERS HOLDINGS LLC
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By |
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Title:
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| CONFIRMED AND ACCEPTED, |
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| as of the date first above written: |
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| BOFA SECURITIES, INC. |
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By
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Authorized Signatory |
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RBC CAPITAL MARKETS, LLC
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By
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Authorized Signatory |
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BTIG, LLC.
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By
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Authorized Signatory |
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For itself and as Representatives of the other Underwriters named in Schedule A hereto.
SCHEDULE A
The initial public offering price per share for the Securities shall be $[●].
The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●], being an amount equal to the initial public offering price set forth above less $[●] per
share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.
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Name of Underwriter
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Number of
Initial Securities
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BofA Securities, Inc.
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RBC Capital Markets, LLC
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BTIG, LLC
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Builder Advisory Group, LLC
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Zelman Partners LLC
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Woodrock Securities L.P.
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Wedbush Securities Inc.
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Total
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SCHEDULE B-1
Pricing Terms
1. The Company is selling [●] shares of Class A Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly,
to purchase up to an additional [●] shares of Class A Common Stock.
3. The initial public offering price per share for the Securities shall be $[●].
SCHEDULE B-2
Free Writing Prospectuses
[None.]
SCHEDULE B-3
Testing-the-Waters Materials
1. Dream Finders Homes – Investor Presentation – December 2020
SCHEDULE C
List of Persons and Entities Subject to Lock-up
[●]
Form of lock-up from directors, officers or other stockholders pursuant to Section 5(i)
Exhibit A
[●], 2020
BofA Securities, Inc.,
as Representative of the several
Underwriters to be named in the
within‑mentioned Underwriting Agreement
One Bryant Park
New York, New York 10036
Re: Proposed Public Offering by Dream Finders Homes, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of Dream Finders Homes, Inc., a Delaware corporation (the “Company”), understands that BofA
Securities, Inc. (“BofA”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering of shares of the Company’s Class A common stock, par value $0.01 per share (the “Class A Common
Stock”). The undersigned further understands that, prior to the consummation of the public offering of the Class A Common Stock (the “Public Offering”), the Company will be authorized to issue, in addition to the Class A Common Stock, shares of Class
B common stock, par value $0.01 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”).
In recognition of the benefit that the Public Offering will confer upon the undersigned as a stockholder [and an officer and/or director] of the Company,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and
ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of BofA, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the
registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Class A Common Stock the undersigned may
purchase in the Public Offering.
If the undersigned is an officer or director of the Company, (1) BofA agrees that, at least three business days before the effective date of any release or
waiver of the foregoing restrictions in connection with a transfer of shares of the Common Stock, BofA will notify the Company of the impending release or waiver, and (2) the Company has agreed or will agree in the Underwriting Agreement to announce
the impending release or waiver by press release through a major news service (or other medium and method acceptable to the Financial Industry Regulatory Authority, Inc.) at least two business days before the effective date of the release or waiver.
Any release or waiver granted by BofA hereunder to any such officer or director shall only be effective two business days after the publication date of such public notification. The provisions of this paragraph will not apply if (i) the release or
waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in effect at
the time of the transfer.
Notwithstanding the foregoing, and subject to the conditions below, as applicable, the undersigned may transfer the Lock-Up Securities without the prior
written consent of BofA, provided that (1) with respect to clauses (i) through (viii) below, BofA receives a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee,
nominee, transferee, or custodian, as the case may be, (2) with respect to each of clauses (i), (iii), (iv), (v), (vi), (viii) and (xii) (with respect to clause (viii), solely regarding dispositions or transfers otherwise permissible under clauses (i),
(iii), (iv), (v) and (vi)), any such transfer shall not involve a disposition for value and does not require reporting to the Securities and Exchange Commission on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), of a reduction in beneficial ownership of Common Stock, and (3) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers:
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as a bona fide gift or gifts or charitable contribution;
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upon death or by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family (as defined below) of the
undersigned upon the death of the undersigned;
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for bona fide tax or estate planning purposes;
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to the immediate family of the undersigned or any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin), or if the undersigned is a trust, to any beneficiary of the
undersigned (including such beneficiary’s estate);
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as a distribution to limited partners, general partners, members, stockholders or other equityholders of the undersigned;
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to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned;
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pursuant to an order of a court or regulatory agency (for purposes of this lock-up agreement, a “court or regulatory agency” means any domestic or foreign, federal, state or local
government, including any political subdivision thereof, any governmental or quasi-governmental authority, department, agency or official, any court or administrative body or any national securities exchange or similar self-regulatory body or
organization, in each case of competent jurisdiction) or pursuant to a qualified domestic order or in connection with a divorce settlement; provided, that any filing under Section 16(a) of the Exchange
Act in connection with such transfer shall indicate that such transfer is made in connection with one or more of the foregoing;
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to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i)-(vii) above;
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upon the exercise of any rights to purchase, exchange or convert any stock options granted pursuant to the Company’s equity incentive plans described in the Prospectus (as defined in the
Underwriting Agreement) or any other securities described in the Prospectus, including the Class B Common Stock; provided, that any required filing under Section 16 of the Exchange Act made during the
Lock-Up Period with respect to the matters described in this clause (ix) shall clearly indicate in the footnotes thereto that (1) the filing relates to the circumstances described above and (2) the underlying shares of Common Stock continue to
be subject to the restrictions on transfer set forth in this lock-up agreement;
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to the Company in connection with the termination of the undersigned’s employment or other service with the Company, provided, that any required
filing under Section 16 of the Exchange Act made during the Lock-Up Period with respect to the matters described in this clause (x) shall clearly indicate in the footnotes thereto that (1) the filing relates to the circumstances described above
and (2) no Lock-Up Securities were sold by the reporting person other than such transfers to the Company as described above;
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after the completion of the proposed Public Offering, pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction approved by the Company’s board
of directors and made to all holders of the Company’s securities involving a change of control of the Company; provided, that, in the event that such tender offer, merger, consolidation or other such
transaction is not completed, such Lock-Up Securities held by the undersigned shall remain subject to the restrictions on transfer set forth in this lock-up agreement (for purposes hereof, “change of control” shall mean the transfer (whether by
tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of
affiliated persons would become the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the total voting power of the voting securities of the Company (or the surviving entity)); or
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to the Company or its subsidiaries (A) in connection with the repurchase of the undersigned’s Common Stock upon death or disability pursuant to an employment agreement or equity award
granted pursuant to the Company’s equity incentive plans described in the Prospectus, (B) pursuant to arrangements described in the Prospectus under which the Company has the option to repurchase such shares or a right of first refusal with
respect to transfers of such securities or (C) in the exercise of outstanding options, warrants, restricted stock units or other equity interests, including transfers deemed to occur upon the “net” or “cashless” exercise of options or for the
sole purpose of paying the exercise price of such options, warrants, restricted stock units or other equity interests or for paying taxes (including estimated taxes) due as a result of the exercise of such options, warrants, restricted stock
units or other equity interests or as a result of the vesting of Common Stock under restricted stock awards, in each case pursuant to the Company’s equity incentive plans or other arrangement disclosed in the Prospectus; provided, that any Common Stock received upon such exercise or other event described in subclause (C) shall be subject to the terms of this lock-up agreement.
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In addition, it is understood and agreed that this lock-up agreement shall not apply to (a) the sale of any Class A Common Stock to the underwriters
pursuant to the Underwriting Agreement or (b) any transfer or sale in connection with, and as contemplated by, the reorganization transactions (the “Corporate Reorganization”) described under the caption “Corporate Reorganization” in the preliminary
prospectus relating to the Public Offering at the time of its effectiveness.
Furthermore, the undersigned may sell shares of Common Stock purchased by the undersigned in the Public Offering or on the open market following the
consummation of the Public Offering if and only if (i) such sales are not required to be reported in accordance with Section 16(a) of the Exchange Act and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding
such sales.
Notwithstanding anything to the contrary herein, the undersigned may establish or amend a trading plan pursuant to Rule 10b5-1 under the Exchange Act for
the transfer of shares of Lock-Up Securities; provided, that (i) such plan does not provide for the transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or
filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment or amendment of such plan, such announcement or filing shall include a statement to the effect that
no transfer of Lock-Up Securities may be made under such plan during the Lock-Up Period.
This lock-up agreement and any claim, controversy or dispute arising under or related to this lock-up agreement shall be governed by, and construed in accordance with the
laws of, the state of New York without regard to its choice of law provisions.
Notwithstanding anything to the contrary contained herein, this lock-up agreement will automatically terminate and the undersigned will be released from all obligations
hereunder upon the earliest to occur, if any, of: (i) if BofA, on behalf of the Underwriters, on the one hand, or the Company, on the other hand, informs the other in writing, prior to the execution of the Underwriting Agreement, that it has determined
not to proceed with the Public Offering; (ii) the date the Company files an application with the SEC to withdraw the registration statement related to the Public Offering; (iii) the date the Underwriting Agreement is terminated (other than the
provisions thereof which survive termination) prior to payment for and delivery of the shares of Common Stock to be sold thereunder; or (iv) March 31, 2021, in the event that the Underwriting Agreement has not been executed by such date (provided that
the Company may, by written notice to the undersigned prior to such date, extend such date for a period of up to an additional three months). This lock-up agreement shall not be amended without the prior written consent of the undersigned.
The undersigned hereby consents to receipt of this lock-up agreement in electronic form and understands and agrees that this lock-up agreement may be signed electronically.
In the event that any signature is delivered by facsimile transmission, electronic mail, or otherwise by electronic transmission evidencing an intent to sign this lock-up agreement, such facsimile transmission, electronic mail or other electronic
transmission shall create a valid and binding obligation of the undersigned with the same force and effect as if such signature were an original. Execution and delivery of this lock-up agreement by facsimile transmission, electronic mail or other
electronic transmission is legal, valid and binding for all purposes.
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 Lock-Up Securities during the Lock-Up Period except in compliance with the foregoing restrictions.
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Very truly yours, |
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Signature:
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Print Name:
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Exhibit B
FORM OF PRESS RELEASE
TO BE ISSUED PURSUANT TO SECTION 3(j)
Dream Finders Homes, Inc.
[Date]
Dream Finders Homes, Inc. (the “Company”) announced today that BofA, the lead book-running manager in the Company’s recent public sale of [●] shares of Class A common stock, is [waiving]
[releasing] a lock-up restriction with respect to shares of the Company’s Class A common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on , 2021,
and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be
offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
C-7