Exhibit 1.1
1,100,000 Shares
KURA SUSHI USA, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
April 10, 2023
Citigroup Global Markets Inc.
William Blair & Company, L.L.C.
Barclays Capital Inc.
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
William Blair & Company, L.L.C.
150 North Riverside Plaza
Chicago, Illinois 60606
Barclays Capital Inc.
745 7th Avenue
New York, New York 10019
Ladies and Gentlemen:
Kura Sushi USA, Inc. (the “Company”), a Delaware corporation, proposes, subject to the terms and conditions stated herein, to issue and sell an aggregate of 1,100,000 shares (the “Firm Shares”) of the Company’s Class A Common Stock, $0.001 par value per share (the “Class A Common Stock”), to the several underwriters (collectively, the “Underwriters”), named in Schedule I to this agreement (this “Agreement”), for whom Citigroup Global Markets Inc. (“Citigroup”), William Blair & Company, L.L.C. (“William Blair”) and Barclays Capital Inc. (“Barclays”) are acting as representatives (Citigroup, together with William Blair and Barclays, are collectively referred to herein as the “Representatives”). The Company has also agreed to grant to the Underwriters an option (the “Option”) to purchase up to an additional 165,000 shares of Class A Common Stock (the “Option Shares”) on the terms set forth in Section 1(b) hereof. The Firm Shares and the Option Shares (to the extent the aforementioned option is exercised) are herein collectively called the “Shares.” The shares of Class A Common Stock and Class B common stock, $0.001 par value per share, of the Company (the “Class B Common Stock”) are hereinafter referred to collectively as the “Common Stock.”
The Registration Statement (as defined herein) (i) has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder; (ii) has been filed with the Commission under the Securities Act; and (iii) has been declared effective under the Securities Act. As used in this Agreement:
(i) “Applicable Time” means 10:30 p.m., New York City time, on April 10, 2023;
(ii) “Base Prospectus” means the base prospectus, dated January 6, 2023, included in the Registration Statement;
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(iii) “General Disclosure Package” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with (A) the information set forth on Schedule V hereto, and (B) each Issuer Free Writing Prospectus identified on Schedule III hereto, other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 of the Rules and Regulations;
(iv) “Effective Date” means the date and time as of which the Registration Statement, or any post-effective amendment or amendments thereto, became or becomes effective;
(v) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) or “issuer free writing prospectus” (as defined in Rule 433 of the Rules and Regulations) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Shares;
(vi) “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 IV;
(vii) “Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus;
(viii) “Preliminary Prospectus” means any preliminary prospectus (including any preliminary prospectus supplement) relating to the offering of the Shares filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations that is filed prior to the filing of the Prospectus, together with the Base Prospectus;
(ix) “Prospectus” means the final prospectus (including any prospectus supplement thereto) relating to the offering of the Shares, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, together with the Base Prospectus;
(x) “Registration Statement” means the registration statement on Form S-3 (File No. 333-269040), as amended as of the Effective Date, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement, and, in the event any post-effective amendment thereto or Rule 462(b) Registration Statement becomes effective prior to the Closing Date (as defined below), shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be;
(xi) “Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the Registration Statement referenced in Section 1(a) hereof;
(xii) “Testing-the-Waters Communication” means any oral or written communication with potential investors in reliance on Section 5(d) of the Securities Act; and
(xiii) “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 of the Rules and Regulations.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 that were filed under the Securities Exchange Act of 1934, as amended, and the Rules and Regulations of the Commission thereunder (collectively, the “Exchange Act”) prior to the Effective Date or the issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date or the issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be, deemed to be incorporated therein by reference.
The Company confirms as follows their agreement with the Representatives and the several other Underwriters:
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The Company is, and at the Closing Date will be, a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has, and at the Closing Date will have, full power and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Company is, and at the Closing Date will be, duly licensed or qualified to do business in and in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary, except where and to the extent that the failure to be so licensed or qualified or to be in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined below).
The Company has no subsidiaries (as defined in Rule 405 of the Rules and Regulations).
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If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by the Representatives by notifying the Company of such termination in writing at or prior to the Closing Date or any Option Closing Date, as the case may be.
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For purposes of this Section 11:
“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.
[Signature page follows]
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Please confirm that the foregoing correctly sets forth the agreement between the Company and the several Underwriters.
Very truly yours,
KURA SUSHI USA, INC.
By: /s/ Jeffrey Uttz
Name: Jeffrey Uttz
Title: Chief Financial Officer
[Signature page to Underwriting Agreement]
Confirmed as of the date first above mentioned:
Acting on behalf of themselves and as Representatives of the several Underwriters named in Schedule I hereof
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Matthew Daniel
Name: Matthew Daniel
Title: Director
William Blair & Company, L.L.C.
By: /s/ Zach Dombrowski
Name: Zach Dombrowski
Title: Head of C&R ECM
BARCLAYS CAPITAL INC.
By: /s/ Michaela Diverio
Name: Michaela Diverio
Title: Managing Director, Barclays
[Signature page to Underwriting Agreement]
Schedule I
UNDERWRITERS
Underwriter | Number of Firm Shares |
Citigroup Global Markets Inc. | 391,795 |
William Blair & Company, L.L.C. | 307,838 |
Barclays Capital Inc. | 251,867 |
Stephens Inc. | 74,250 |
Craig-Hallum Capital Group LLC | 37,125 |
Roth Capital Partners, LLC | 37,125 |
Total | 1,100,000 |
S-I-1
Schedule II
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Hajime Uba
Jeffrey Uttz
Brent Takao
Shintaro Asako
Kim Ellis
Seitaro Ishii
Carin L. Stutz
Shahin Allameh
S-II-1
Schedule III
ISSUER FREE WRITING PROSPECTUSES INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
None.
S-III-1
Schedule IV
TESTING-THE-WATERS COMMUNICATIONS INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
None.
S-IV-1
Schedule V
INFORMATION INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
1. The public offering price per share of Class A Common Stock shall be $54.00.
S-V-1
EXHIBIT A
[DATE]
Citigroup Global Markets Inc.
William Blair & Company, L.L.C.
Barclays Capital Inc.
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
William Blair & Company, L.L.C.
150 North Riverside Plaza
Chicago, Illinois 60606
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
In consideration of the agreement of the several underwriters (the “Underwriters”), for which Citigroup Global Markets Inc., William Blair & Company, L.L.C. and Barclays Capital Inc. intend to act as Representatives, to underwrite a proposed public offering (the “Offering”) of shares of Class A common stock, par value $0.001 per share (the “Class A Common Stock”), of Kura Sushi USA, Inc., a Delaware corporation (the “Company”), the undersigned hereby irrevocably agrees that the undersigned shall not, for a period (the “Lock-Up Period”) beginning on the date of this Lock-Up Agreement and ending 90 days after the date of the final prospectus for the Offering, without the prior written consent of the Representatives (which consent may be withheld in its sole discretion), (1) offer, sell, pledge, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition), or require the Company to file with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), to register, any shares of Class A Common Stock or Class B common stock, par value $0.001 per share, of the Company (together with the Class A Common Stock, the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to acquire shares of Common Stock of which the undersigned is now, or may in the future become, the beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (such shares, securities, warrants or rights collectively, the “Restricted Securities”), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, directly or indirectly, any of the economic benefits or risks of ownership of such Restricted Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (3) publicly disclose the intention to enter into any transaction described in clause (1) or (2) above. 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 Restricted Securities owned either of record or beneficially by the undersigned except in compliance with the foregoing restrictions. Any securities of the Company acquired by the undersigned in the Offering will also be Restricted Securities subject to this Lock-Up Agreement.
If the undersigned is or, prior to the end of the Lock-Up Period, becomes an officer or director of the Company, the undersigned further agrees that the foregoing restrictions shall be equally applicable to any issuer-directed shares of Common Stock the undersigned may purchase in the Offering.
The foregoing restrictions shall not apply to: (i) transfers of Restricted Securities as a bona fide gift or gifts by the undersigned; (ii) transfers or dispositions of Restricted Securities to any trust for the direct or indirect benefit
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of the undersigned or any member of the immediate family of the undersigned; (iii) transfers or dispositions of Restricted Securities to any of the undersigned’s affiliates (within the meaning set forth in Rule 405 under the Securities Act), limited partners, general partners, limited liability company members or stockholders; (iv) transfers of Restricted Securities by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned; (v) transfers or dispositions of shares of Common Stock acquired by the undersigned in open market purchases after the completion of the Offering; (vi) transfers to the Company in connection with the “net” or “cashless” exercise of options or other rights to purchase Common Stock granted pursuant to an equity incentive plan, stock purchase plan or other arrangement described in the final prospectus in satisfaction of any tax withholding obligations through cashless surrender or otherwise, other than a “broker-assisted” exercise, provided, that any shares of Common Stock issued upon exercise of such option or other rights shall remain subject to the terms of this Lock-Up Agreement or (vii) entry by the undersigned into any trading plan established pursuant to Rule 10b5-1 under the Exchange Act; provided, however, that (a) in the case of (i), (ii), (iii) or (iv) above, it shall be a condition to the transfer or disposition that the donee, trustee, heir, distributee or other transferee, as the case may be, agrees to be bound in writing to the restrictions set forth herein during the Lock-Up Period; (b) any transfer or disposition pursuant to (i), (ii), (iii) or (iv) above shall not involve a disposition for value; (c) in the case of a transfer or distribution pursuant to (i), (ii), (iii) or (v) above, no filing by the undersigned or any other party under the Exchange Act or other public announcement shall be required or made voluntarily during the Lock-Up Period in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period); and (d) in the case of (vii) above, such trading plan does not provide for any sales or other dispositions of Restricted Securities during the Lock-Up Period and no public announcement or filing under the Exchange Act or otherwise is made by or on behalf of the undersigned or the Company regarding the establishment of, or sales under, such plan during the Lock-Up Period. For the purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin.
If the undersigned is an officer or director of the Company, (i) the Representatives agree 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 Restricted Securities, the Representatives will notify the Company of the impending release or waiver, and (ii) the Company will agree in the underwriting agreement relating to the Offering (the “Underwriting Agreement”) to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representatives hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) 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.
This Lock-Up Agreement shall automatically terminate and become null and void (i) at such time as the Representatives, on the one hand, or the Company, on the other hand, advises the other in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (ii) upon the termination of the Underwriting Agreement before the closing of the Offering, or (iii) on October 31, 2023, if the Offering shall not have closed by such date; provided, however, that the Representatives or the Company may, by written notice to you prior to such date, extend such date for a period of up to three additional months.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this Lock-Up Agreement.
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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 applicable to agreements made and to be performed entirely within such state.
Very truly yours,
________________________________________
Name of Officer, Director or Security Holder
(Print exact name)
By:______________________________________
Signature
If not signing in an individual capacity:
________________________________________
Name of Authorized Signatory (Print)
________________________________________
Title of Authorized Signatory (Print)
(indicate capacity of person signing if signing as custodian, trustee, or on behalf of an entity)
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EXHIBIT B
Form of Press Release
Kura Sushi USA, Inc.
[Date]
Kura Sushi USA, Inc. (the “Company”) announced today that Citigroup Global Markets Inc., William Blair & Company, L.L.C. and Barclays Capital Inc., the joint book-running managers in the Company’s recent public sale of shares of Class A common stock, are [waiving][releasing] a lock-up restriction with respect to [●] shares of the Company’s common stock held by [certain officers or directors][an officer or director] of the Company. The [waiver][release] will take effect on [●], 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.
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EXHIBIT C
Form of Opinion of
Counsel to the Company
[Provided separately]
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