EXHIBIT 1.1
GROUP MAINTENANCE AMERICA CORP.
COMMON STOCK
_________________
UNDERWRITING AGREEMENT
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November __, 1997
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
XXXXXXX XXXXX & COMPANY
ABN AMRO CHICAGO CORPORATION
As representatives of the several
Underwriters named in Schedule I hereto,
c/o The Xxxxxxxx-Xxxxxxxx Company, LLC
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Group Maintenance America Corp., a Texas corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I (the "Underwriters") an aggregate of
7,500,000 shares of common stock, par value $.001 per share ("Common Stock"), of
the Company (the "Firm Shares"), and, at the election of the Underwriters,
subject to the terms and conditions stated herein, to sell to the Underwriters
up to 1,125,000 additional shares of Common Stock (the "Optional Shares") (the
Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are collectively called the "Shares").
Prior to the date hereof, the Company has acquired each of the companies
listed on Schedule II hereto (each an "Existing Company" and collectively the
"Existing Companies") and has entered into agreements to acquire (each an
"Acquisition Agreement" and collectively the "Acquisition Agreements") each of
the companies listed on Schedule III hereto (each an "Acquired Company" and
collectively the "Acquired Companies"). The Existing Companies, the Acquired
Companies and the subsidiaries of the Company listed on Schedule IV (the
"Acquisition Subsidiaries") are referred to herein as the "GroupMAC Companies."
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-34067) with
respect to the Shares, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and
one or more amendments to such registration statement
may have been so filed. After the execution of this Agreement, the Company
will file with the Commission either (i) if such registration statement, as
it may have been amended, has become effective under the Act and
information has been omitted therefrom in accordance with Rule 430A under
the Act, either (A) if the Company relies on Rule 434 under the Act, a term
sheet relating to the shares that shall identify the preliminary prospectus
that it supplements containing such information as is required or permitted
by Rules 434, 430A and 424(b) under the Act or (B) if the Company does not
rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement) with such
changes or insertions as are required by Rule 430A or permitted by Rule
424(b) under the Act and as have been provided to and approved by the
Representatives, or (ii) if such registration statement, as it may have
been amended, has not become effective under the Act, an amendment to such
registration statement, including a form of prospectus, a copy of which
amendment has been provided to and approved by the Representatives prior to
the execution of this Agreement. The Company may also file a related
registration statement with the Commission pursuant to Rule 462(b) under
the Act for the purpose of registering certain additional shares of Common
Stock, which registration statement will be effective upon filing with the
Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Shares, as amended at the time when it was or is declared effective,
including all financial statement schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A under the
Act and included in the Prospectus (as hereinafter defined); the term "Rule
462(b) Registration Statement" means any registration statement filed with
the Commission pursuant to Rule 462(b) under the Act (including the
Original Registration Statement and any Preliminary Prospectus or
Prospectus incorporated therein at the time such Original Registration
Statement becomes effective); the term "Registration Statement" includes
both the Original Registration Statement and any Rule 462(b) Registration
Statement; the term "Preliminary Prospectus" means each prospectus subject
to completion included in such registration statement or any amendment or
post-effective amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement at the time it
was or is declared effective); the term "Prospectus" means (A) if the
Company relies on Rule 434 of the Act, the Term Sheet (as hereinafter
defined) relating to the Shares that is first filed pursuant to Rule
424(b)(7) of the Act, together with the Preliminary Prospectus identified
therein that such Term Sheet supplements; (B) if the Company does not rely
on Rule 434 of the Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act or (C) if no prospectus is required
to be so filed, such term means the prospectus included in the Registration
Statement at the effective time of such Registration Statement; and the
term "Term Sheet" means any term sheet that satisfies the requirements of
Rule 434 of the Act. Any reference to the "date" of a Prospectus that
includes a Term Sheet shall mean the date of such Term Sheet. For purposes
of the following representations and warranties, to the extent reference is
made to the Prospectus and at the relevant time the Prospectus is not yet
in existence, such reference shall be deemed to be to the most recent
Preliminary Prospectus.
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(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission or the securities authority of
any state or other jurisdiction. If the Registration Statement has become
effective under the Act, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or threatened or, to the
best knowledge of the Company, contemplated by the Commission or the
securities authority of any state or other jurisdiction.
(c) When any Preliminary Prospectus was filed with the Commission it
(i) contained all statements required to be stated therein in accordance
with, and complied in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
When the Registration Statement or any amendment thereto was or is
declared effective, and at each Time of Delivery (as hereinafter defined),
it (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the rules and regulations of
the Commission thereunder and (ii) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading. When (A) the Prospectus or
any amendment or supplement thereto is filed with the Commission pursuant
to Rule 424(b) (or, if the Prospectus or such amendment or supplement is
not required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the Prospectus
was or is declared effective) or (B) any Term Sheet which is a part of the
Prospectus is filed with the Commission pursuant to Rule 434, and at each
Time of Delivery, the Prospectus, as amended or supplemented at any such
time, (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the rules and regulations of
the Commission thereunder and (ii) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing provisions of
this paragraph (c) do not apply to statements or omissions made in any
Preliminary Prospectus, the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto, or any
Term Sheet in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you specifically for
use therein.
(d) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement has not been declared effective (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with
and that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt; and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection
with the
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filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act, or the Commission has received payment of
such filing fee.
(e) The descriptions in the Registration Statement and the Prospectus
of statutes, legal and governmental proceedings or contracts and other
documents are accurate and fairly present the information required to be
shown; and there are no statutes or legal or governmental proceedings
required to be described in the Registration Statement or the Prospectus
that are not described as required and no contracts or documents of a
character that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(f) Each of the Company and the GroupMAC Companies has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has full corporate power
and authority to own or lease its properties and conduct its business as
described in the Prospectus and to perform its obligations pursuant to each
of the transactions (hereinafter collectively referred to as the
"Combination") described under the heading "The Acquisitions" in the
Prospectus. Each of the Company and each subsidiary of the Company set
forth on Schedule V hereto (each a "Significant Subsidiary" and
collectively the "Significant Subsidiaries") has full corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder. Each of the Company and the GroupMAC Companies is duly qualified
to transact business as a foreign corporation and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except where
the failure to so qualify would not have a material adverse effect on the
financial position, results of operations or business of the Company and
the GroupMAC Companies taken as a whole (a "Material Adverse Effect").
(g) As of each Time of Delivery, the Company's authorized capital
stock will be as disclosed in the Prospectus. All of the shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform in all
material respects to the description of the capital stock contained in the
Prospectus. All of the shares of issued and outstanding capital stock of
each of the GroupMAC Companies have been duly authorized and validly
issued, are fully paid and nonassessable and at and as of each Time of
Delivery will be owned beneficially by the Company free and clear of all
liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting trusts, equities or claims of any nature
whatsoever except for any such liens, security interests, pledges, charges
or encumbrances which exist pursuant to the Senior Secured Revolving Credit
Facility among the Company, as Borrower, Texas Commerce Bank, National
Association, as Agent, Chase Securities, Inc., as Arranger, and the banks
named therein, dated as of November __, 1997 (the "New Credit Agreement").
Other than the GroupMAC Companies, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or
other association. None of the issued shares of capital stock
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of the Company or its predecessors or any of its Acquisition Subsidiaries
has been issued or is owned or held in violation of any preemptive rights
of shareholders, and no person or entity (including any holder of
outstanding shares of capital stock of the Company or its subsidiaries) has
any preemptive or other rights to subscribe for any of the Shares.
(h) The unissued shares of Common Stock to be issued by the Company to
the shareholders of the Acquired Companies pursuant to the Acquisition
Agreements have been duly authorized and, when issued and delivered as
provided therein, will be validly issued, fully paid and nonassessable and
will conform to the description of the Common Stock contained in the
Prospectus; and none of such shares of Common Stock will be issued or sold
in violation of any preemptive rights of shareholders.
(i) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and
delivered against payment therefore as provided herein, will be validly
issued, fully paid and nonassessable and will conform to the description of
the Common Stock contained in the Prospectus; the certificates evidencing
the Shares will comply with all applicable requirements of Texas law; and
none of the Shares will be issued or sold in violation of any preemptive
rights of shareholders.
(j) All offers and sales of Company's capital stock prior to the date
hereof were, and all offers and sales of the Company's capital stock made
in connection with the Acquisition Agreements have been and will be at each
Time of Delivery, exempt from the registration requirements of the Act by
reason of Sections 3(b), 4(2) or 4(6) thereof and were or will have been
the subject of an available exemption from the registration requirements of
the applicable state securities or blue sky laws.
(k) Except as disclosed in the Prospectus or as described in the
agreements listed on Schedule VI hereto, there are no outstanding (i)
securities or obligations of the Company or any of the GroupMAC Companies
convertible into or exchangeable for any capital stock of the Company or
any such GroupMAC Company, (ii) warrants, rights or options to subscribe
for or purchase from the Company or any such GroupMAC Company any such
capital stock or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or any such GroupMAC
Company to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
options.
(l) Since the respective date as of which information is given in the
Prospectus, and except as otherwise disclosed therein, there has been no
material loss or interference with the business of the Company and the
GroupMAC Companies taken as a whole from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree; and since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, (i) none of the Company or any of the GroupMAC Companies
has incurred any liabilities or obligations,
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direct or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and the GroupMAC
Companies taken as a whole, (ii) the Company has not purchased any of its
outstanding capital stock or declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock, (iii) there has not been
any change in the capital stock, long-term debt or short-term debt of the
Company or any of the GroupMAC Companies other than changes in short term
debt arising from borrowings in the ordinary course of business and
consistent with past practices, and (iv) there has not been any Material
Adverse Effect, or any development involving a prospective Material Adverse
Effect in each case other than as disclosed in or contemplated by the
Prospectus.
(m) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement (or any such right has been effectively waived) or any securities
being registered pursuant to any other registration statement filed by the
Company under the Act.
(n) Neither the Company nor any of the GroupMAC Companies is, or with
the giving of notice or passage of time or both would be, in violation of
its Articles of Incorporation or Bylaws. Neither the Company nor any of
the GroupMAC Companies is, or with the giving of notice or passage of time
or both would be, in default under any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which the Company
or any of the GroupMAC Companies is a party or to which any of their
respective properties or assets are subject that could reasonably be
expected to result in a Material Adverse Effect.
(o) The issue and sale of the Shares, the performance of this
Agreement and the consummation of the transactions herein contemplated, and
the performance of the Acquisition Agreements and the consummation of the
transactions therein contemplated will not conflict with, or (with or
without the giving of notice or the passage of time or both) result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company or any of the
GroupMAC Companies is a party or to which any of their respective
properties or assets is subject except as would not have a Material Adverse
Effect, nor will such action conflict with or violate any provision of the
Articles of Incorporation or Bylaws of the Company or any of the GroupMAC
Companies or any statute, rule or regulation or any order, judgment or
decree of any court or governmental agency or body having jurisdiction over
the Company or any of the GroupMAC Companies or any of their respective
properties or assets. No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with, any
court or governmental agency or body is required for the issue and sale of
the Shares, the consummation of the
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transactions contemplated by this Agreement, or the consummation of the
transactions contemplated by the Acquisition Agreements, except (i) the
registration of the Shares under the Act (which, if the Registration
Statement is not effective as of the time of execution hereof, shall be
obtained as provided in this Agreement), (ii) such as may be required under
state securities or blue sky laws in connection with the offer, sale and
distribution of the Shares by the Underwriters, (iii) the filing of
articles of merger or other similar documents as contemplated in the
Acquisition Agreements and (iv) such as have been obtained or made.
(p) Each of the Company and the GroupMAC Companies has good and
marketable title in fee simple to all real property, if any, and good title
to all personal property owned by it, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages and
defects, except such as are disclosed in the Prospectus or permitted by the
New Credit Agreement or such as do not materially and adversely affect the
value of such property and do not interfere with the use made or proposed
to be made of such property by the Company or such GroupMAC Company; and
any real property and buildings held under lease by the Company or any of
the GroupMAC Companies are held under valid, subsisting and enforceable
leases except to the extent that the failure of any such lease to be
enforceable would not have a Material Adverse Effect.
(q) Other than as disclosed in the Prospectus, there is no litigation,
arbitration, claim or proceeding pending or, to the knowledge of the
Company, threatened in which the Company or any of the GroupMAC Companies
is a party or of which any of their respective properties or assets are the
subject which, if determined adversely to the Company or any such GroupMAC
Company, could reasonably be expected to have individually or in the
aggregate a Material Adverse Effect, and to the knowledge of the Company,
no investigation is pending or threatened against the Company that could
reasonably be expected to have such an effect. The Company and each of the
GroupMAC Companies is in compliance in all respects with all statutes,
rules, regulations, orders, judgments and decrees, except as described in
the Prospectus or as could not reasonably be expected individually or in
the aggregate to have a Material Adverse Effect; and none of the Company or
any of the GroupMAC Companies is required to take any action in order to
avoid any such violation or default.
(r) To the knowledge of the Company, KPMG Peat Marwick, LLP, who have
certified certain financial statements of the Company and the GroupMAC
Companies, Xxxx Xxxxx LLP and Deloitte & Touche LLP, who have certified
certain financial statements of XxxXxxxxx-Xxxxxx Industries, Inc. and
Masters, Inc., respectively, are each, and were each during the periods
covered by their reports included in the Registration Statement and the
Prospectus, independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder.
(s) The consolidated financial statements and schedules (including the
related notes) of the Company and its consolidated subsidiaries included in
the Registration
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Statement, the Prospectus or any Preliminary Prospectus were prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved and fairly present the financial
position and results of operations of the Company and its subsidiaries, on
a consolidated basis, at the dates and for the periods presented. The
selected historical financial data set forth under the caption "Selected
Historical and Pro Forma Financial Data" in the Prospectus fairly present,
on the basis stated in the Prospectus, the information included therein.
The unaudited pro forma combined financial statements included in the
Prospectus and the selected pro forma financial data set forth under the
caption "Selected Historical and Pro Forma Financial Data" in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations of the
Commission thereunder, and management of the Company believes (A) the
assumptions underlying the pro forma adjustments are reasonable, (B) that
such adjustments have been properly applied to the historical amounts in
the compilation of such statements and (C) that such statements present
fairly, with respect to the Company and its consolidated subsidiaries, the
information purported to be shown therein. The financial statements and
schedules (including the related notes) of each of the GroupMAC Companies
included in the Registration Statement, the Prospectus or any Preliminary
Prospectus were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved and fairly
present the financial position and results of operations of each GroupMAC
Company at the dates and for the periods presented.
(t) This Agreement has been duly authorized, executed and delivered by
the Company and each Significant Subsidiary and constitutes the valid and
binding agreement of the Company and each Significant Subsidiary
enforceable against the Company and each Significant Subsidiary in
accordance with its terms, subject, as to enforcement, to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws
relating to or affecting the enforcement of creditors' rights generally and
to general equitable principles.
(u) The Company has obtained for the benefit of the Company and the
Underwriters from each of its directors and officers and from the
shareholders of the Company listed on Schedule VII hereto a written
agreement that for a period of 180 days from the date of the Prospectus
such director, officer or shareholder will not, without the prior written
consent of The Xxxxxxxx-Xxxxxxxx Company, LLC, offer, sell, contract to
sell, or otherwise dispose of, directly or indirectly, any shares of Common
Stock or other instrument which by its terms is convertible into,
exercisable or exchangeable for, any 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 of the Securities Exchange Act of 1934,
as amended), other than an exercise of stock options or sale of Common
Stock pursuant to a "cashless exercise" of stock options which are either
(i) outstanding on the date of the Prospectus, (ii) issued under the
Company's 1997 Stock Awards Plan or (iii) issued under the Company's stock
option plan for nonmanagement employees or a bona fide gift of Common
Stock, provided that the donee agrees to be bound by the terms thereof;
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(v) Except as described in the Prospectus, the operations of the
Company and the GroupMAC Companies with respect to any real property
currently leased or owned or by any means controlled by the Company or any
of the GroupMAC Companies (the "Real Property") are in compliance with all
federal, state, and local laws, ordinances, rules, and regulations relating
to occupational health and safety and the environment (collectively,
"Laws") except to the extent that failure to so comply would not have a
Material Adverse Effect, and the Company and the GroupMAC Companies have
all licenses, permits and authorizations necessary to operate under all
Laws and are in compliance with all terms and conditions of such licenses,
permits and authorizations, except to the extent that failure to have any
such license, permit or authorization or failure to so comply would not
have a Material Adverse Effect; none of the Company or any of the GroupMAC
Companies has authorized, conducted or has knowledge of the generation,
transportation, storage, use, treatment, disposal or release of any
hazardous substance, hazardous waste, hazardous material, hazardous
constituent, toxic substance, pollutant, contaminant, petroleum product,
natural gas, liquefied gas or synthetic gas defined or regulated under any
environmental law on, in or under any Real Property, except to the extent
that such generation, transportation, storage, use, treatment, disposal or
release would not have a Material Adverse Effect; and there is no pending
or threatened claim, litigation or any administrative agency proceeding,
nor has the Company or any of the GroupMAC Companies received any written
notice from any governmental entity or third party, that: (i) alleges a
violation of any Laws by the Company or any of the GroupMAC Companies; (ii)
alleges the Company or any of the GroupMAC Companies is a liable party
under the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. (S) 9601 et seq. or any state superfund law; (iii) alleges
possible contamination of the environment by the Company or any of the
GroupMAC Companies; or (iv) alleges possible contamination of the Real
Property except (A) as disclosed in the Prospectus and (B) such as could
not reasonably be expected to have a Material Adverse Effect.
(w) The Company and the GroupMAC Companies own or have the right to
use all patents, patent applications, trademarks, trademark applications,
tradenames, service marks, copyrights, franchises, trade secrets,
proprietary or other confidential information and intangible properties and
assets (collectively, "Intangibles") necessary to their respective
businesses as presently conducted; to the best knowledge of the Company and
the Significant Subsidiaries, none of the Company or any of the GroupMAC
Companies has infringed or is infringing, and none of the Company or any of
the GroupMAC Companies has received notice of infringement with respect to,
asserted Intangibles of others that could reasonably be expected to have a
Material Adverse Effect; and, to the best knowledge of the Company and the
Significant Subsidiaries, there is no infringement by others of Intangibles
of the Company or any of the GroupMAC Companies that could reasonably be
expected to have a Material Adverse Effect.
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(x) The Company and each of the GroupMAC Companies are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in
which they are engaged.
(y) No GroupMAC Company is, or will be at any Time of Delivery,
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distributions on such GroupMAC Company's
capital stock, from repaying to the Company any loans or advances to such
GroupMAC Company or from transferring any of such GroupMAC Company's
property or assets to the Company or any other subsidiary of the Company,
except as disclosed in the Prospectus or as provided in the New Credit
Agreement.
(z) Each of the Company and the GroupMAC Companies has filed all
foreign, federal, state and local tax returns that are required to be filed
by it or has requested extensions thereof and has paid all taxes required
by such returns as well as all other taxes, assessments and governmental
charges that are due and payable, except where the failure to file such
returns or pay such taxes would not have a Material Adverse Effect or as
are being contested in good faith and by appropriate proceedings; and no
deficiency with respect to any such return has been assessed or proposed.
(aa) The Company is not, will not become as a result of the
transactions contemplated hereby or in the Acquisition Agreements, and does
not intend to conduct its business in a manner that would cause it to
become, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
(bb) Each Acquisition Agreement has been duly authorized, executed and
delivered by the Company and each GroupMAC Company which is a party thereto
and constitutes the valid and binding agreement of the Company and such
GroupMAC Company enforceable against the Company and such GroupMAC Company
in accordance with its terms, subject, as to enforcement, to applicable
bankruptcy, insolvency, reorganization and moratorium laws, to other laws
relating to or affecting the enforcement of creditors' rights generally, to
general equitable principles and to limitations on the enforceability of
indemnification provisions for liability under the federal securities laws.
At and as of the First Time of Delivery (as hereinafter defined), the
acquisition of all of the GroupMAC Companies and the other transactions
contemplated by the Acquisition Agreements will be consummated in
accordance with the terms of the Acquisition Agreements.
(cc) The New Credit Agreement has been duly authorized, executed and
delivered by the Company and each of the GroupMAC Companies which is a
party thereto, and constitutes the valid and binding agreement of the
Company and each such GroupMAC Company enforceable against the Company and
each such GroupMAC Company in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization and
moratorium laws, to other laws relating to or affecting the enforcement
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of creditors' rights generally, to general equitable principles and to
limitations on the enforceability of indemnification provisions for
liability under the federal securities laws.
2. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
herein set forth, (a) the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $_________ per share, the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto, and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares that such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of the Optional Shares that all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election in whole or in part from time to time up to 1,125,000 Optional
Shares, at the purchase price per share set forth in clause (a) in the paragraph
above plus, if the purchase and sale of any Optional Shares takes place after
the First Time of Delivery and after the Firm Shares are traded "ex-dividend,"
an amount equal to the dividends payable on such Optional Shares, for the sole
purpose of covering over-allotments in the sale of Firm Shares. Any such
election to purchase Optional Shares may be exercised by written notice from you
to the Company, given from time to time within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as hereinafter defined) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice. In the event you elect to purchase all or a
portion of the Optional Shares, the Company agrees to furnish or cause to be
furnished to you the certificates, letters and opinions, and to satisfy all
conditions, set forth in Section 7 hereof at each Subsequent Time of Delivery
(as hereinafter defined).
3. OFFERING BY THE UNDERWRITERS. Upon the authorization by you of the
release of the Shares, the several Underwriters propose to offer the Shares for
sale upon the terms and conditions disclosed in the Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates for the Shares to be
purchased by each Underwriter hereunder, and in such denominations and
registered in such names as The Xxxxxxxx-Xxxxxxxx Company, Inc. may request upon
at least 48 hours' prior notice to the Company shall be delivered by or on
behalf of the Company to you for the account of such Underwriter, against
payment by such Underwriter on its behalf of the purchase price therefor by
wire transfer of
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immediately available funds to an account designated by the Company. The closing
of the sale and purchase of the Shares shall be held at the offices of Xxxxxxxxx
& Xxxxxxxxx, L.L.P., South Tower Pennzoil Place, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxx 00000, except that physical delivery of such certificates shall be made at
the office of The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, at 10:00 a.m., Houston time, on the third full business day
after the execution of this Agreement or at such other time, date and place as
you and the Company may agree upon in writing, and, with respect to the Optional
Shares, at 10:00 a.m., Houston time, on the date specified by you in the written
notice given by you of the Underwriters' election to purchase all or part of
such Optional Shares, or at such other time, date and place as you and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery," such time and date for
delivery of the Optional Shares, if not the First Time of Delivery, is herein
called a "Subsequent Time of Delivery," and each such time and date for delivery
is herein called a "Time of Delivery." The Company will make such certificates
available for checking and packaging at least 24 hours prior to each Time of
Delivery at the office of The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or at such other location in New York, New York specified
by you in writing at least 48 hours prior to such Time of Delivery.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with each
of the Underwriters:
(a) If the Registration Statement has been declared effective prior to
the execution and delivery of this Agreement, the Company will file either
(A) the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by you,
subparagraph (4)) of Rule 424(b) or (B) a Term Sheet with the Commission
pursuant to and in accordance with Rule 434 not later than the earlier of
(i) the second business day following the execution and delivery of this
Agreement or (ii) the fifth business day after the date on which the
Registration Statement is declared effective. The Company will advise you
promptly of any such filing pursuant to Rule 424(b) or Rule 434.
(b) The Company will not file with the Commission the Prospectus or
the amendment referred to in the second sentence of Section 1(a) hereof,
any amendment or supplement to the Prospectus, any Term Sheet, any
amendment to the Registration Statement or any Rule 462(b) Registration
Statement unless you have received a reasonable period of time to review
any such proposed amendment or supplement and consented to the filing
thereof which consent will not be unreasonably withheld or delayed, or
unless in the written opinion of counsel for the Company (which opinion is
provided to you prior to any such filing) such amendment or supplement is
required by law, and will use all reasonable efforts to cause any such
amendment to the Registration Statement to be declared effective as
promptly as possible. Upon the request of the Representatives or counsel
for the Underwriters, the Company will promptly prepare and file with the
Commission, in accordance with the rules and regulations of the Commission,
any amendments to the Registration Statement or any amendments or
supplements to the Prospectus or any Term
-12-
Sheet that may be necessary or advisable in connection with the
distribution of the Shares by the several Underwriters and will use its
best efforts to cause any such amendment to the Registration Statement to
be declared effective as promptly as possible. If required, the Company
will file any amendment or supplement to the Prospectus or any Term Sheet
with the Commission in the manner and within the time period required by
Rule 424(b) and Rule 434, as applicable, under the Act. The Company will
advise the Representatives, promptly after receiving notice thereof, of the
time when the Original Registration Statement or any amendment thereto or
any Rule 462(b) Registration Statement has been filed or declared effective
or the Prospectus or any amendment or supplement thereto has been filed and
will provide evidence to the Representatives of each such filing or
effectiveness.
(c) The Company will advise you promptly after receiving notice or
obtaining knowledge of (i) the issuance by the Commission of any stop order
suspending the effectiveness of the Original Registration Statement or any
Rule 462(b) Registration Statement or any part thereof or any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (ii) the suspension of
the qualification of the Shares for offer or sale in any jurisdiction or of
the initiation or threatening of any proceeding for any such purpose, or
(iii) any request made by the Commission or any securities authority of any
other jurisdiction for amending the Original Registration Statement or any
Rule 462(b) Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use all
reasonable efforts to prevent the issuance of any such stop order and, if
any such stop order is issued, to obtain the withdrawal thereof as promptly
as possible.
(d) If the delivery of a prospectus relating to the Shares is required
under the Act at any time prior to the expiration of nine months after the
date of the Prospectus and if at such time any events have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, or if for
any reason it is necessary during such same period to amend or supplement
the Prospectus to comply with the Act or the rules and regulations
thereunder, the Company will promptly notify you and upon your request (but
at the Company's expense) prepare and file with the Commission an amendment
or supplement to the Prospectus that corrects such statement or omission or
effects such compliance and will furnish without charge to each Underwriter
as many copies of such amended or supplemented Prospectus as you may from
time to time reasonably request. If the delivery of a prospectus relating
to the Shares is required under the Act at any time nine months or more
after the date of the Prospectus, upon your request but at the expense of
such Underwriter, the Company will prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act. Neither your consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
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(e) The Company will cooperate with you to qualify the Shares for
offering and sale under the securities or blue sky laws of such
jurisdictions as you may request and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or as a dealer in securities
or to file a general consent to service of process or to subject itself to
taxation in any jurisdiction.
(f) The Company will provide you, without charge, (i) four manually
executed copies of the Original Registration Statement and any Rule 462(b)
Registration Statement as originally filed with the Commission and of each
amendment thereto, (ii) for each other Underwriter a conformed copy of the
Original Registration Statement and any Rule 462(b) Registration Statement
as originally filed and of each amendment thereto, without exhibits, and
(iii) so long as a prospectus relating to the Shares is required to be
delivered under the Act, as many copies of each Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto as you may reasonably
request.
(g) As soon as practicable, but in any event not later than the last
day of the thirteenth month after the later of the effective date of the
Original Registration Statement and any Rule 462(b) Registration Statement,
the Company will make generally available to its security holders an
earnings statement of the Company and its subsidiaries, if any, covering a
period of at least 12 months beginning after the later of the effective
date of the Original Registration Statement and any Rule 462(b)
Registration Statement (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder including, at the
option of the Company, Rule 158 of the Act.
(h) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, the
Company will not, without your prior written consent, offer, pledge, issue,
sell, contract to sell, grant any option for the sale of, or otherwise
dispose of (or announce any offer, pledge, sale, grant of an option to
purchase or other disposition), directly or indirectly, any shares of
Common Stock or securities convertible into, exercisable or exchangeable
for, shares of Common Stock, except as provided in Section 2 and except for
(i) the issuance of Common Stock pursuant to the terms of any of the
Acquisition Agreements, (ii) the issuance of Common Stock to the
shareholders of a company whose primary business is providing heating,
ventilation and air conditioning, plumbing or electrical services to
residential or commercial customers in connection with the acquisition of
such company by the Company, provided that each such shareholder agrees not
to offer, sell, contract to sell, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, such shares of Common Stock
for a period of twelve months from the date of such acquisition, without
the prior written consent of the Underwriters, (iii) the grant of options
pursuant to the Company's 1997 Stock Awards Plan or the Company's stock
option plan for nonmangement employees, and (iv) pursuant to an exercise of
stock options or sale of Common Stock pursuant to a "cashless exercise" of
stock options which are either (A) outstanding on the date of the
Prospectus, (B) issued under the
-14-
Company's 1997 Stock Awards Plan or (C) issued under the Company's stock
option plan for nonmanagement employees.
(i) During a period of five years from the later of the effective date
of the Original Registration Statement or any Rule 462(b) Registration
Statement, the Company will furnish to you and, upon request, to each of
the other Underwriters, without charge, (i) copies of all reports or other
communications (financial or other) furnished to shareholders, (ii) as soon
as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange, and (iii) such additional information concerning the business and
financial condition of the Company and its subsidiaries, if any, as you may
reasonably request.
(j) The Company will apply the net proceeds from the offering in the
manner set forth under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will cause the Shares to be listed on the New York
Stock Exchange, subject to notice of issuance, at each Time of Delivery and
for at least one year from the date hereof.
(l) If at any time during the period beginning on the later of the
effective date of the Original Registration Statement or any Rule 462(b)
Registration Statement and ending on the later of (i) the date 30 days
after such effective date and (ii) the date that is the earlier of (A) the
date on which the Company first files with the Commission a Quarterly
Report on Form 10-Q after such effective date and (B) the date on which the
Company first issues a quarterly financial report to shareholders after
such effective date, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates an amendment of or supplement to the Prospectus), the Company
will, after written notice from you advising the Company to the effect set
forth above, forthwith prepare, consult with you concerning the substance
of, and disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor, publication
or event.
(n) If the Company elects to rely upon Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 promulgated under the Act by the earlier of (i) 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement and (ii) the time
confirmations are sent or given, as specified by Rule 462(b)(2).
(o) The Company will file timely and accurate reports on Form SR with
the Commission in accordance with Rule 463 of the Commission under the Act
or any successor provision.
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(p) The Company agrees that neither the Company nor any affiliate of
the Company, shall use any portion of the proceeds of any loans extended by
any affiliate of ABN AMRO Chicago Corporation ("AACC"), either directly or
indirectly, for the purpose of (i) purchasing any securities underwritten
by AACC, (ii) purchasing from AACC any securities in which AACC makes a
market, or (iii) refinancing or making payments of principal, interest or
dividends on any securities issued by the Company or any affiliate of the
Company, and underwritten or dealt in by AACC.
6. EXPENSES. The Company will pay or cause to be paid all costs and
expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated pursuant to Section 10 hereof, including without
limitation all costs and expenses incident to (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and, if applicable, filing of the Original
Registration Statement (including all amendments thereto), any Rule 462(b)
Registration Statement, any Preliminary Prospectus, the Prospectus and any
amendments and supplements thereto, this Agreement and any blue sky memoranda;
(ii) the delivery of copies of the foregoing documents to the Underwriters;
(iii) the filing fees of the Commission and the National Association of
Securities Dealers, Inc. relating to the Shares; (iv) the preparation, issuance
and delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's and registrar's fees; (v) the qualification of the
Shares for offering and sale under state securities and blue sky laws, including
filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto; (vi) any listing of the securities on the New
York Stock Exchange and (vii) any expenses for travel, lodging and meals
incurred by the Company and any of its officers, directors and employees in
connection with any meetings with prospective investors in the Shares. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 10 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and expenses of their counsel, stock transfer taxes
on resale of any of the Shares by them, and any advertising expenses relating to
the offer and sale of the Shares.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Company and the Significant
Subsidiaries contained herein as of the date hereof and as of such Time of
Delivery, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder, and to the following additional conditions precedent:
(a) If the Original Registration Statement as amended to date has not
become effective prior to the execution of this Agreement, such Original
Registration Statement and, if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have been declared
effective not later than the earlier of (i) 11:00 a.m., Atlanta time, on
the date of this Agreement, and (ii) the time confirmations are sent or
given as specified by
-16-
Rule 462(b)(2), or, with respect to the Original Registration Statement
such later date and/or time as shall have been consented to by you in
writing. The Prospectus and any amendment or supplement thereto or a Term
Sheet shall have been filed with the Commission pursuant to Rule 424(b) or
Rule 434, as applicable, within the applicable time period prescribed for
such filing and in accordance with Section 5(a) of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement, respectively, or any part thereof shall
have been issued and no proceedings for that purpose shall have been
instituted, threatened or, to the knowledge of the Company and the
Representatives, contemplated by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction.
(b) King & Spalding, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the
Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus, and other related matters as you may reasonably
request, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, such counsel may rely as to all
matters of Texas law upon the opinion of Xxxxxxxxx & Xxxxxxxxx, L.L.P.
referred to in paragraph (d) below.
(c) The acquisition of each of the Acquired Companies pursuant to the
Acquisition Agreements shall be effected (i) as described in the Prospectus
and (ii) on terms substantially similar to the terms contained in the
Acquisition Agreements as in effect on the date hereof. Irrevocable
arrangements shall have been made by the Company for the redemption of all
of its outstanding preferred stock.
(d) (i) You shall have received an opinion, dated such Time of
Delivery, of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Company in form
and substance satisfactory to you and your counsel, to the effect that:
(A) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Texas and has the corporate power and authority to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus and to enter into this Agreement and the
Acquisition Agreements and perform its obligations hereunder and
thereunder.
(B) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure so to
qualify or to be in good standing would not have a material adverse
effect on the financial condition, results of operations or business
of the Company and the GroupMAC Companies taken as a whole.
-17-
(C) Each of the GroupMAC Companies has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and all of the
issued and outstanding shares of capital stock of each GroupMAC
Company have been duly authorized and validly issued, are fully paid
and non-assessable and, to our knowledge after due inquiry, are owned
by the Company, directly or through subsidiaries, free and clear of
any lien, encumbrance, claim or equity except for any such lien,
encumbrance, claim or equity contemplated by the New Credit Agreement.
(D) Each of the GroupMAC Companies has the corporate power
and authority to own or lease its properties and conduct its business
as described in the Registration Statement and the Prospectus. Each of
the GroupMAC Companies has the corporate power and authority to enter
into the Acquisition Agreement to which it is a party and to perform
its obligations thereunder. Each of the GroupMAC Companies is duly
qualified to transact business as a foreign corporation and is in good
standing under the laws of each other jurisdiction in which it owns or
leases property, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have a
material adverse effect on the financial position, results of
operations or business of the Company and the GroupMAC Companies.
(E) The Company's authorized, issued and outstanding capital
stock is as set forth in the Prospectus under the caption "Description
of Capital Stock"; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and the Shares conform, as to legal
matters, in all material respects to the description of the Common
Stock contained in the Prospectus under the caption "Description of
Capital Stock." No person or entity (including any holder of
outstanding shares of capital stock of the Company or its
subsidiaries) has any statutory or, to our knowledge, contractual
preemptive rights to subscribe for any of the Shares.
(F) The shares of Common Stock being delivered by the
Company as of the date hereof have been duly authorized for issuance
and sale to the shareholders of the Acquired Companies on the date
hereof pursuant to the Acquisition Agreements) have been duly
authorized and, when issued and delivered by the Company pursuant to
the Acquisition Agreements against payment of the consideration set
forth therein, will be validly issued, fully paid and nonassessable;
and none of such shares of Common Stock will be issued or sold in
violation of any preemptive rights of shareholders.
-18-
(G) The Shares being delivered by the Company as of the date
hereof have been duly authorized for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and, when issued
and delivered against payment of the consideration set forth in the
Underwriting Agreement, will be validly issued and fully paid and
nonassessable and will conform to the description of the Common Stock
contained in the Prospectus; the certificates evidencing the Shares
comply with all applicable requirements of Texas law; the Shares have
been listed, subject to notice of issuance, on the New York Stock
Exchange.
(H) To our knowledge after due inquiry, except as have been
waived or satisfied, there are no persons with registration or other
similar rights to have any securities of the Company registered
pursuant to the Registration Statement.
(I) The issue and sale of the Shares being delivered on the
date hereof to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated, and the
performance of the Acquisition Agreements and the consummation of the
transactions contemplated therein will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan or credit agreement or note known to us after due inquiry to
which the Company or any of the GroupMAC Companies is a party or to
which any of their respective properties or assets is subject, nor
will such action conflict with or result in a violation of any
provision of the Articles of Incorporation, as amended, or Bylaws, as
amended, of the Company or any of the GroupMAC Companies or any
statute, rule or regulation or any order, judgment or decree of any
court or governmental agency or body having jurisdiction over the
Company or any of the GroupMAC Companies or any of their respective
properties or assets.
(J) No consent, approval, authorization or order of any
court or governmental agency (other than those which have been
obtained under the Act and the rules and regulations promulgated
thereunder or as may be required under the securities or blue sky laws
of the various states in connection with the offer, sale and
distribution of the Shares by the Underwriters) is required to be
obtained by the Company for the issuance or sale of the Shares by the
Company to the Underwriters, the consummation of the transactions
contemplated by this Agreement, or the consummation of the
transactions contemplated by the Acquisition Agreements.
-19-
(K) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Significant Subsidiaries.
(L) Each Acquisition Agreement has been duly authorized,
executed and delivered by the Company and each of the GroupMAC
Companies which is a party thereto and constitutes the valid and
binding agreement of the Company and such GroupMAC Company enforceable
against the Company and such GroupMAC Company.
(M) The New Credit Agreement has been duly authorized,
executed and delivered by the Company and each of the GroupMAC
Companies which is a party thereto and constitutes the valid and
binding agreement of the Company and each such GroupMAC Company
enforceable against the Company and each such GroupMAC Company in
accordance with its terms, subject, as to enforcement, to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles.
(N) The Registration Statement as of its effective date, any
Rule 462(b) Registration Statement and the Prospectus as of its date
(other than the financial statements and related schedules included
therein, as to which such counsel need express no opinion), complied
as to form in all material respects with the requirements of the Act
and the rules and regulations thereunder. The descriptions in the
Registration Statement and the Prospectus of statutes, legal and
governmental proceedings or contracts and other documents appearing
under the headings "Risk Factors-Regulation," "Risk Factors-Shares
Eligible for Future Sale," "Business-Governmental Regulation and
Environmental Matters," "Management-Employment Agreements,"
"Management-Stock Awards Plan," "Description of Capital Stock,"
"Description of Bank Credit Agreement," and "Shares Eligible for
Future Sale" are accurate and fairly present the information required
to be shown.
(O) Each of the Registration Statement and any Rule 462(b)
Registration Statement is effective under the Act; any required filing
of the Prospectus or any Term Sheet pursuant to Rule 424(b) or Rule
434, as applicable, has been made in the manner and within the time
period required by Rule 424(b) or Rule 434, as applicable; and no stop
order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement, respectively, or any part
thereof has been issued and, to such counsel's knowledge, no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
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(P) To our knowledge after due inquiry, there are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement which are not so filed.
(Q) The Company is not an "investment company," or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(R) If the Company elects to rely upon Rule 434, the
Prospectus is not "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement at the
time of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be omitted
pursuant to Rule 430A).
Such counsel shall also state that they have no reason to believe that the
Registration Statement, or any further amendment thereto made prior to such Time
of Delivery, on its effective date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, or any amendment or
supplement thereto made prior to such Time of Delivery, as of its issue date and
as of such Time of Delivery, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading (provided that such counsel need express no belief
regarding the financial statements and related schedules and other financial
data contained in the Registration Statement, any amendment thereto, or the
Prospectus, or any amendment or supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and GroupMAC Companies and public officials and, as to
matters involving the application of laws of any jurisdiction other than the
state of Texas or the United States, to the extent satisfactory in form and
scope to counsel for the Underwriters, upon the opinion of local counsel
satisfactory to the Underwriters, provided that such counsel states such counsel
believes that the Underwriters are justified in relying upon such opinion and
copies of such opinion are delivered to the Representatives and counsel for the
Underwriters.
(ii) You shall have received an opinion, dated such Time of Delivery, of
Xxxxxxxx X. Xxxxxx, Senior Vice President and General Counsel for the Company in
form and substance satisfactory to you and your counsel, to the effect that:
(A) Except as disclosed in the Prospectus, there are no
outstanding (1) securities or obligations of the Company or any of the
GroupMAC Companies convertible into or exchangeable for any capital
stock of the Company or any such
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GroupMAC Company, (2) warrants, rights or options to subscribe for or
purchase from the Company or any such GroupMAC Company any such
capital stock or any such convertible or exchangeable securities or
obligations, or (3) obligations of the Company or any such GroupMAC
Company to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights
or options.
(B) Except as have been waived or satisfied, there are no
persons with registration or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement, and, except as is disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or in any securities
being registered pursuant to any registration statement other than the
Registration Statement filed by the Company under the Act.
(C) Other than as disclosed in or contemplated by the
Prospectus, there is no litigation, arbitration, claim or proceeding
which is required to be disclosed in the Prospectus and is not
disclosed; and neither the Company nor any of the GroupMAC Companies
is in violation of, or in default with respect to, any statute, rule,
regulation, order, judgment or decree, except as described in the
Prospectus, nor is the Company or any GroupMAC Company required to
take any action in order to avoid any such violation or default.
Such counsel shall also state that he has no reason to believe that the
Registration Statement, or any further amendment thereto made prior to such Time
of Delivery, on its effective date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, or any amendment or
supplement thereto made prior to such Time of Delivery, as of its issue date and
as of such Time of Delivery, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading (provided that such counsel need express no belief
regarding the financial statements and related schedules and other financial
data contained in the Registration Statement, any amendment thereto, or the
Prospectus, or any amendment or supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and GroupMAC Companies and public officials and, as to
matters involving the application of laws of any jurisdiction other than the
state of Texas or the United States, to the extent satisfactory in form and
scope to counsel for the Underwriters, upon the opinion of local counsel
satisfactory to the Underwriters, provided that such counsel states such counsel
believes that the Underwriters are justified in relying
-22-
upon such opinion and copies of such opinion are delivered to the
Representatives and counsel for the Underwriters.
(e) You shall have received from KPMG Peat Marwick, LLP letters dated,
respectively, the date hereof (or, if the Registration Statement has been
declared effective prior to the execution and delivery of this Agreement,
dated such effective date and the date of this Agreement) and each Time of
Delivery, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto. In the event that the letters referred to in the
immediately preceding sentence set forth any changes, decreases or
increases in the items specified in paragraph ___ of Annex I, it shall be a
further condition to the obligations of the Underwriters that (i) such
letters shall be accompanied by a written explanation by the Company as to
the significance thereof, unless the Representatives deem such explanation
unnecessary, and (ii) such changes, decreases or increases do not, in your
sole judgment, make it impracticable or inadvisable to proceed with the
purchase, sale and delivery of the Shares being delivered at such Time of
Delivery as contemplated by the Registration Statement, as amended as of
the date of such letter. You shall have received from each of Xxxx Xxxxx
LLP and Deloitte & Touche LLP letters dated, respectively, the date hereof
(or, if the Registration Statement has been declared effective prior to the
execution and delivery of this Agreement, dated such effective date and the
date of this Agreement) and each Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex II hereto.
(f) Since the date of the latest audited financial statements included
in the Prospectus, except as otherwise disclosed in or contemplated by the
Prospectus, none of the Company or any of the GroupMAC Companies shall have
sustained (i) any loss or interference with their respective businesses
from fire, explosion, flood, hurricane or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in or contemplated by
the Prospectus, or (ii) any change, or any development involving a
prospective change (including without limitation a change in management or
control of the Company), in or affecting the financial position, results of
operations, net worth or business prospects of the Company and the GroupMAC
Companies, otherwise than as disclosed in or contemplated by the
Prospectus, the effect of which, in either such case, is in your judgment
so material and adverse as to make it impracticable or inadvisable to
proceed with the purchase, sale and delivery of the Shares being delivered
at such Time of Delivery as contemplated by the Registration Statement, as
amended as of the date hereof.
(g) Subsequent to the date hereof there shall not have occurred any of
the following: (i) any suspension or limitation in trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or in the Common Stock by the Commission or
the New York Stock Exchange; (ii) a moratorium on commercial banking
activities in New York declared by either federal or state authorities; or
(iii) any outbreak or escalation of hostilities involving the United
States, declaration by the
-00-
Xxxxxx Xxxxxx of a national emergency or war or any other national or
international calamity or emergency if the effect of any such event
specified in this clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares
being delivered at such Time of Delivery as contemplated by the
Registration Statement, as amended as of the date hereof.
(h) The Company shall have furnished to you at such Time of Delivery
certificates of officers of the Company, satisfactory to you as to the
accuracy of the representations and warranties of the Company herein at and
as of such Time of Delivery, as to the performance by the Company and
Significant Subsidiaries of all of their obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have furnished
or caused to be furnished certificates as to the matters set forth in
subsections (a), (c) and (f) of this Section 7, and as to such other
matters as you may reasonably request.
(i) The Shares shall be listed on the New York Stock Exchange, subject
to notice of issuance.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each of the
Significant Subsidiaries, jointly and severally, agree to indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or (ii) the omission or alleged omission
to state in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any reasonable legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company and the Significant Subsidiaries shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement or
any Rule 462(b) Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use therein; and provided, further,
however, that the foregoing indemnity with respect to any untrue statement or
omission from any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Shares if (i) the Company has complied with Sections 5(b), (d) and
(f)(iii), (ii) a copy of the Prospectus had not been sent or given to such
person at or prior to the written confirmation of the sale of such Shares to
such person if required by the Act and untrue
-24-
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus, and (iii) the Prospectus does not
contain any other untrue statement of a material fact or omit to sate any other
material fact that, in either case, was the subject matter of the related
action, suit or proceeding. The Company and the Significant Subsidiaries will
not, without the prior written consent of each Underwriter, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding (or related cause of action or portion thereof) in
respect of which indemnification may be sought hereunder (whether or not such
Underwriter is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of such
Underwriter from all liability arising out of such claim, action, suit or
proceeding (or related cause of action or portion thereof).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless the Company and the Significant Subsidiaries against any losses,
claims, damages or liabilities to which the Company or any Significant
Subsidiary may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein; and will reimburse the Company and the Significant Subsidiaries
for any reasonable legal or other expenses reasonably incurred by the Company
and the Significant Subsidiaries in connection with investigating, defending or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a) and
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party);
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
-25-
party and such indemnified party shall have the right to select separate counsel
to defend such action on behalf of such indemnified party. After such notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances, which
separate counsel shall be designated by the Representatives in the case of
indemnity arising under paragraph (a) of this Section 8) or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Nothing in this Section 8(c)
shall preclude an indemnified party from participating at its own expense in the
defense of any such action so assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Significant Subsidiaries on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Significant Subsidiaries on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Significant Subsidiaries on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Significant Subsidiaries and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) 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 subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims,
-26-
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Significant Subsidiaries under
this Section 8 shall be in addition to any liability which the Company or the
Significant Subsidiaries may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. DEFAULT OF UNDERWRITERS. (a) If any Underwriter defaults in its
obligation to purchase Shares at a Time of Delivery, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty-six (36) hours after such default by
any Underwriter you do not arrange for the purchase of such Shares, the Company
shall be entitled to a further period of thirty-six (36) hours within which to
procure another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Shares, or the Company notifies you that it has so arranged for the
purchase of such Shares, you or the Company shall have the right to postpone a
Time of Delivery for a period of not more than seven days in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus that in your opinion may thereby be made necessary. The cost of
preparing, printing and filing any such amendments shall be paid for by the
Underwriters. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require
-27-
each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. TERMINATION. (a) This Agreement may be terminated with respect to
the Firm Shares or any Optional Shares in the sole discretion of the
Representatives by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that (i)
any condition to the obligations of the Underwriters set forth in Section 7
hereof has not been satisfied, or (ii) the Company shall have failed, refused or
been unable to deliver the Shares or to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior to
such Time of Delivery, in either case other than by reason of a default by any
of the Underwriters. If this Agreement is terminated pursuant to this Section
10(a), the Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable counsel fees and disbursements)
reasonably incurred by them in connection with the proposed purchase and sale of
the Shares. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in Section 9(a), the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh of the aggregate number of Shares to be
purchased at such Time of Delivery, or if the Company shall not exercise the
right described in Section 9(b) to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to a Subsequent Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Significant Subsidiaries,
their respective officers and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person referred to in Section 8(e) or the
Company, or any officer or director or controlling person of the Company
referred to in Section 8(e), and shall survive delivery of and payment for the
Shares. The respective agreements, covenants, indemnities and other statements
set forth in Sections 6 and 8 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed, delivered or telegraphed and
confirmed in writing to you in care of The
-28-
Xxxxxxxx-Xxxxxxxx Company, LLC, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx
00000, Attention: Corporate Finance Department (with a copy which shall not
constitute notice to King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: Xxxx X. Xxxxxx III); and if sent to the Company or any
Significant Subsidiary, shall be mailed, delivered or telegraphed and confirmed
in writing to the Company at 0000 Xxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention: General Counsel.
13. REPRESENTATIVES. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you jointly or by The Xxxxxxxx-Xxxxxxxx Company,
LLC. will be binding upon all the Underwriters.
14. BINDING EFFECT. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and the Significant
Subsidiaries and to the extent provided in Sections 8 and 10 hereof, the
officers and directors and controlling persons referred to therein and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
provisions regarding conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto 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 instrument.
-29-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, and upon the
acceptance hereof by The Xxxxxxxx-Xxxxxxxx Company, LLC, on behalf of each of
the Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company and the Significant Subsidiaries. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in the Master Agreement among Underwriters,
a copy of which shall be submitted to the Company for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
GROUP MAINTENANCE AMERICA CORP.
By:___________________________________
Name:
Title:
AIRTRON, INC.
By:___________________________________
Name:
Title:
XXXXXXXX-XXXXX PRODUCTS & PUBLICATIONS, INC.
By:___________________________________
Name:
Title:
[XXXXXXXX-XXXXX & ASSOCIATES]
By:___________________________________
Name:
Title:
-30-
K&N PLUMBING, HEATING AND AIR
CONDITIONING, INC.
By:___________________________________
Name:
Title:
LINFORD CORP.
By:___________________________________
Name:
Title:
XXXXXXXXX-XXXXXX ACQUISITION CORP.
By:___________________________________
Name:
Title:
MASTERS ACQUISITION CORP.
By:___________________________________
Name:
Title:
-31-
YALE ACQUISITION CORP.
By:___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above at
Atlanta, Georgia.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
XXXXXXX XXXXX & COMPANY
ABN AMRO CHICAGO CORPORATION
By: The Xxxxxxxx-Xxxxxxxx Company,
LLC
By:________________________________
(Authorized Representative)
On behalf of each of the Underwriters
-32-
SCHEDULE I
Number of
Optional
Shares to be
Total Purchased if
Number of Firm Maximum
Shares to be Option
Underwriter Purchased Exercised
----------- -------------- ------------
The Xxxxxxxx-Xxxxxxxx Company, LLC
Xxxxxxx Xxxxx & Company
ABN AMRO Chicago Corporation
-------------- ------------
Total................... ============== ============
SCHEDULE II
EXISTING COMPANIES
Airtron, Inc.
A-ABC Appliance, Inc.
A-1 Appliance and Air Conditioning, Inc.
Xxxxxxx Xxxxxxxx, Inc.
Xxxxxxx Brothers, Inc.
Hallmark Air Conditioning, Inc.
XX XXXX, Inc.
K&N Plumbing, Heating, Air Conditioning, Inc.
Xxxxxx Services, Incorporated
Xxxxxxxx-Xxxxx Products & Publications, Inc.
[Xxxxxxxx-Xxxxx & Associates]
[Way Service, Inc.]
[United Service Alliance, L.C.]
SCHEDULE III
ACQUIRED COMPANIES
All Service Electric, Inc.
Arkansas Mechanical Services, Inc.
Central Carolina Air Conditioning Company
Xxxxx Services, Inc.
Linford Service Company
XxxXxxxxx-Xxxxxx Industries, Inc.
Masters, Inc.
Mechanical Services, Inc.
Xxxx X. Xxxxx Co., Inc.
Southeast Mechanical Service, Inc.
Van's Comfortemp Air Conditioning, Inc.
Xxxxxx Refrigeration, Heating & Air Conditioning, Inc.
Yale Incorporated
SCHEDULE IV
ACQUISITION SUBSIDIARIES
All Service Acquisition Corp.
AMI Acquisition Corp.
Central Carolina Acquisition Corp.
Xxxxx Acquisition Corp.
Linford Acquisition Corp.
XxxXxxxxx-Xxxxxx Acquisition Corp.
Masters Acquisition Corp.
PES Acquisition Corp.
SEMS Acquisition Corp.
Van's Acquisition Corp.
Xxxxxx Acquisition Corp.
Yale Acquisition Corp.
SCHEDULE V
SIGNIFICANT SUBSIDIARIES
Airtron, Inc.
K&N Plumbing, Heating, Air Conditioning, Inc.
Xxxxxxxx-Xxxxx Products & Publications, Inc.
[Xxxxxxxx-Xxxxx & Associates]
Linford Acquisition Corp.
XxxXxxxxx-Xxxxxx Acquisition Corp.
Masters Acquisition Corp.
Yale Acquisition Corp.
SCHEDULE VI
OUTSTANDING SECURITIES
SCHEDULE VII
LOCKUP AGREEMENTS
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, KPMG Peat Marwick
LLP shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect to the
Company and its consolidated subsidiaries within the meaning the Act and
the applicable published rules and regulations thereunder;
(ii) in their opinion, the consolidated financial statements and
schedules audited by them and included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) as of a specified date not more than 5 days prior to the
date of such letter, there were any changes in the capital stock
(other than the issuance of capital stock upon exercise of employee
stock options that were outstanding on the date of the latest balance
sheet included in the Prospectus) or any increase in inventories or
the long-term debt or short-term debt of the Company and its
subsidiaries, or any decreases in net current assets or net assets or
other items specified by the Representatives, or any increases in any
other items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur, or which
are described in such letter; and
(B) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause (C) there were any decreases in revenues or operating
income or the total or per share amounts of net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for
A-1
increases or decreases which the Prospectus discloses have
occurred or may occur, or which are described in such letter; and
(iv) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection
of minute books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives that are included in the Registration Statement
and the Prospectus, or which appear in Part II of, or in exhibits
or schedules to, the Registration Statement and have compared
certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
(v) on the basis of a reading of the unaudited pro forma consolidated
condensed financial statements included in the Registration Statement and
the Prospectus, carrying out certain specified procedures that would not
necessarily reveal matters of significance with respect to the comments set
forth in this paragraph (iii), inquiries of certain officials of the
Company and its consolidated subsidiaries and the GroupMAC Companies who
have responsibility for financial and accounting matters and preparing the
pro forma consolidated condensed financial statements, nothing came to
their attention that caused them to believe that the unaudited pro forma
consolidated condensed financial statements do not comply as to form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in this
Annex I shall include any amendment or supplement thereto at the date of
such letter.
A-2
