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EXHIBIT 1.1
GENERAL ROOFING SERVICES, INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
_______, 1998
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXX XXXXX & ASSOCIATES, INC.
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
Dear Sirs:
General Roofing Services, Inc., a Florida 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
4,000,000 shares of common stock, par value $.01 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 600,000 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 entered into agreements to
acquire (each an "Acquisition Agreement" and collectively the "Acquisition
Agreements") each of the companies listed on Schedule II hereto (each a "GRS
Company" and collectively the "GRS 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. 333-53641)
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
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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.
(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, to the Company's
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knowledge, 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,
to the Company's knowledge, threatened or 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 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.
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(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 GRS 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 power
and authority (corporate and other) 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 Combination" in the Prospectus. The Company has full power
and authority (corporate and other) to enter into this Agreement and to
perform its obligations hereunder. Each of the Company and the GRS
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 GRS
Companies taken as a whole (a "Material Adverse Effect").
(g) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
of the capital stock contained in the Prospectus. All of the issued
shares of capital stock of each of the GRS 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 Credit Agreement among the Company, as borrower, and
Bank of America, as lender, dated as of ________, 1998 (the "Credit
Agreement"). Other than the GRS 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 of the Company or its predecessors or any of its
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 GRS Companies pursuant to the
Acquisition Agreements have been duly
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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 and 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 Florida 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, there are no
outstanding (i) securities or obligations of the Company or any of the
GRS Companies convertible into or exchangeable for any capital stock of
the Company or any such GRS Company, (ii) warrants, rights or options
to subscribe for or purchase from the Company or any such GRS Company
any such capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of the Company or any
such GRS 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 date of the most recent audited financial
statements included in the Prospectus, none of the Company or any of
the GRS Companies has sustained any material loss or interference with
its business 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, otherwise than as disclosed in or
contemplated by the Prospectus; 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 GRS Companies has
incurred any liabilities or obligations, direct or contingent, or
entered into any transactions, not in the ordinary course of business,
that are material to the Company and the GRS Companies, except for
those certain discussions between the Company and the Xxxxx XxXxxxxxx
Group, Inc. regarding the provision of roofing services, (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 GRS Companies, and (iv) there has not been any material adverse
change, or any development involving a prospective
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material adverse change, in or affecting the financial position,
results of operations or business of the Company and the GRS Companies,
taken as a whole, 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 GRS Companies is, or
with the giving of notice or passage of time or both would be, (i) in
violation of its Articles of Incorporation or Bylaws, or (ii) 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 GRS Companies is a party or to which any of their respective
properties or assets are subject, except as would not have a Material
Adverse Effect on the Company and the GRS Companies taken as a whole.
(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 GRS 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 on the Company and the GRS Companies taken as a
whole, nor will such action conflict with or violate any provision of
the Articles of Incorporation or Bylaws of the Company or any of the
GRS 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 GRS 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 transactions contemplated by this Agreement, or the consummation of
the transactions contemplated by the Acquisition Agreements, except 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) and 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.
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(p) Each of the Company and the GRS 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 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 GRS Company; and any real
property and buildings held under lease by the Company or any of the
GRS Companies are held under valid, subsisting and enforceable leases,
with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made
of such property and buildings by the Company or such GRS Company.
(q) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending, or to the knowledge of the Company, threatened
(or any basis therefor) in which the Company or any of the GRS
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 GRS Company, would individually or in the aggregate have a
Material Adverse Effect on the Company and the GRS Companies taken as a
whole. Neither the Company nor any of the GRS 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 or
such as do not and will not individually or in the aggregate have a
Material Adverse Effect on the Company and the GRS Companies taken as a
whole, and neither the Company nor any of the GRS Companies is required
to take any action in order to avoid any such violation or default.
(r) (i) Deloitte & Touche LLP, who have certified certain
financial statements of the Company, General Roofing Industries, Inc.,
GRI of South Florida, Inc., GRI of West Florida, GRI of Orlando, Inc.,
Dakota Leasing, Inc., Xxxxxxx Roofing, Ltd., Specialty Associates,
Inc., SAI Wholesale Distributors, Inc., Cyclone Roofing Company,
Xxxxxx-Xxxxx Roofing Company, Xxxxxxxxxx-Xxxxxxx Roofing Company, Inc.,
H&S Investments, LLC, Architectural Sheet Metal, Inc., Xxxxxx, Xxxxxxx
& Xxxxxxx Construction Company, Inc., Five-K Industries, Inc. and
Subsidiary, Advanced Roofing, Inc., Advanced Leasing, Inc., K&M
Warehouse, Inc., Hi-Rise Crane, Inc., Xxxxxxxxx and Xxxxxxx Roofing,
Inc., and Register Contracting Company, Inc.; (ii) Xxxxx Xxxxxxx LLP,
who have certified certain financial statements of CEI Roofing, Inc.,
CEI West Roofing Company, Inc., and CEI Florida, Inc.; (iii) Xxxxx &
Xxxxxxx CPA's, P.C., who have certified certain financial statements of
Xxxxxxx Roofing, Ltd.; (iv) Xxxxxxx & Xxxxx, X.X., who have certified
certain financial statements of Five-K Industries, Inc. and Subsidiary;
and (v) Blue & Co., LLC, who have certified certain financial
statements of Xxxxxxxxx and Xxxxxxx Roofing, Inc., 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.
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(s) Except as disclosed in the Prospectus, the consolidated
financial statements and schedules (including the related notes) of the
Company and its consolidated subsidiaries 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 the Company and its
subsidiaries, on a consolidated basis, at the dates and for the periods
presented. The selected 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 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 fairly present, with respect to
the Company and its consolidated subsidiaries, the unaudited pro forma
combined financial position and results of operations and the other
information purported to be shown therein at the respective dates or
for the respective periods therein specified. The financial statements
and schedules (including the related notes) of each of the GRS
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 GRS Company at the dates and for the periods
presented.
(t) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the 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.
(u) Neither the Company nor any of its officers, directors or
affiliates has (i) taken, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares or (ii) since the filing of the Registration Statement (A) sold,
bid for, purchased or paid anyone any compensation for soliciting
purchases of, the Shares or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company.
(v) 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 II 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 your prior
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written consent, offer, pledge, 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, or exercisable or exchangeable for, shares of Common
Stock.
(w) Neither the Company, any of the GRS Companies, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any such GRS Company has, directly
or indirectly: used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(x) The operations of the Company and the GRS Companies with
respect to any real property currently leased or owned or by any means
controlled by the Company or any of the GRS 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"), and the Company and
the GRS 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; none
of the Company or any of the GRS 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; and there is no pending, or to the
knowledge of the Company, threatened claim, litigation or any
administrative agency proceeding, nor has the Company or any of the GRS
Companies received any written or oral notice from any governmental
entity or third party, that: (i) alleges a violation of any Laws by the
Company or any of the GRS Companies; (ii) alleges the Company or any of
the GRS Companies is a liable party under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. ss.
9601 et seq. or any state superfund law; (iii) alleges possible
contamination of the environment by the Company or any of the GRS
Companies; or (iv) alleges possible contamination of the Real Property.
(y) The Company and the GRS 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 or as the Prospectus
indicates the Company or such GRS Company proposes to conduct; to the
best knowledge of the Company, none of the Company or any of the GRS
Companies has infringed or is infringing, and none of the Company or
any
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of the GRS Companies has received written notice of infringement with
respect to, asserted Intangibles of others; and, to the best knowledge
of the Company, there is no infringement by others of Intangibles of
the Company or any of the GRS Companies.
(z) The Company and each of the GRS 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; and none of the Company or any
such GRS Company has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a comparable cost, except as disclosed in
the Prospectus.
(aa) Each of the Company and the GRS Companies makes and keeps
accurate books and records reflecting its assets and maintains internal
accounting controls which provide reasonable assurance that (i)
transactions are executed in accordance with management's
authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company's and each of the GRS Company's consolidated
financial statements in accordance with generally accepted accounting
principles and to maintain accountability for the assets of the Company
and each of the GRS Companies, (iii) access to the assets of the
Company and each of the GRS Companies is permitted only in accordance
with management's authorization, and (iv) the recorded accountability
for assets of the Company and each of the GRS Companies is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(bb) No GRS 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 GRS Company's
capital stock, from repaying to the Company any loans or advances to
such GRS Company or from transferring any of such GRS 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
Credit Agreement.
(cc) Each of the Company and the GRS Companies has filed all
foreign, federal, state and local tax returns that are required to be
filed by it and have paid all taxes shown as due on such returns as
well as all other taxes, assessments and governmental charges that are
due and payable and no deficiency with respect to any such return has
been assessed or proposed, except as would not have a Material Adverse
Effect on the Company and the GRS Companies taken as a whole.
(dd) 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.
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(ee) Each Acquisition Agreement has been duly authorized,
executed and delivered by the Company and each party thereto and
constitutes the valid and binding agreement of the Company and such
other parties enforceable against the Company and such other parties 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. At and as of the First
Time of Delivery, the acquisition of all of the GRS Companies and the
other transactions contemplated by the Acquisition Agreements will have
been consummated in accordance with the terms of the Acquisition
Agreements.
(ff) The Credit Agreement has been duly authorized, executed
and delivered by the Company and each of the GRS Companies which is a
party thereto, and constitutes the valid and binding agreement of the
Company and each such GRS Company enforceable against the Company and
each such GRS 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.
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 600,000 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 (as hereinafter defined) 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
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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 in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as The Xxxxxxxx-Xxxxxxxx Company, LLC 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 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 King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 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., Atlanta time, on the third full business day after the execution
of this Agreement or at such other time and date as you and the Company may
agree upon in writing, and, with respect to the Optional Shares, at 10:00 a.m.,
Atlanta 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 and date 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
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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 and will use its best 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 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 its best 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
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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 and to any dealer in securities 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.
(e) The Company promptly from time to time will take such
action as you may reasonably request 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 to file a general consent to
service of process in any jurisdiction.
(f) The Company will promptly 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.
(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
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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, provided that each such recipient
of Common Stock 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 180 days after
the date of the Prospectus, without the prior written consent of the
Underwriters, (ii) the issuance of Common Stock to the shareholders of
a company whose primary business is providing commercial roofing
services 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 180 days after the date of the Prospectus, without the prior
written consent of the Underwriters, and (iii) the grant of options
pursuant to the Company's 1998 Stock Option and Restricted Stock
Purchase Plan in effect at the First Time of Delivery, provided that
such options are not exercisable prior to the date 180 days after the
date of the Prospectus.
(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) Neither the Company nor any of its officers, directors or
affiliates will (i) take, directly or indirectly, prior to the
termination of the underwriting syndicate contemplated by this
Agreement, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of, the Shares or (iii) pay
or agree to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(k) The Company will apply the net proceeds from the offering
substantially in the manner set forth under "Use of Proceeds" in the
Prospectus.
(l) The Company will cause the Shares to be listed on the
National Association of Securities Dealers Automated Quotation National
Market System ("The Nasdaq Stock Market"), subject to notice of
issuance, at each Time of Delivery and for at least one year from the
date hereof.
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(m) 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) All offers and sales of the Company's capital stock prior
to the date hereof, and all offers and sales of the Company's capital
stock made in connection with the Acquisition Agreements to be issued
on the First Time of Delivery, were at all relevant times duly
registered under the Act or exempt from the registration requirements
of the Act by reason of Sections 3(b), 4(2) or 4(6) thereof and were
duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue
sky laws.
6. EXPENSES. The Company covenants and agrees with the several
Underwriters that they 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
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filing fees and fees and disbursements of counsel for the Underwriters relating
thereto in an amount not to exceed $____________; (vi) any listing of the
securities on The Nasdaq Stock Market 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 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 respective 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 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 Florida law upon the opinion of Xxxxx &
XxXxxxxx referred to in paragraph (d) below.
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(c) The acquisition of each of the GRS Companies pursuant to
the Acquisition Agreements shall have been 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.
(d) You shall have received an opinion, dated such Time of
Delivery, of Xxxxx & XxXxxxxx, counsel for the Company in form and
substance satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly
incorporated, is validly existing as a corporation
in good standing under the laws of its
jurisdiction of incorporation 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. The
Company 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 Company and the GRS Companies taken as a
whole.
(ii) Each of the GRS Companies has been
duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation 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.
Each of the GRS 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 GRS
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 Company and
the GRS Companies taken as a whole.
(iii) The Company's authorized, issued and
outstanding capital stock is as disclosed in the
Prospectus. All of the issued shares of capital
stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable
and conform to the description of the Common Stock
contained in the Prospectus. To the knowledge of
such counsel, none of the issued shares of capital
stock of the Company or its predecessors or any of
its subsidiaries has been issued or is owned or
held
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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.
(iv) The unissued shares of Common Stock to
be issued by the Company to the shareholders of
the GRS Companies on the date hereof 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.
(v) The Shares have been duly authorized
and, when issued and delivered against payment
therefor as provided herein, 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 Florida law; the Shares have been
listed, subject to notice of issuance, on The
Nasdaq Stock Exchange.
(vi) All offers and sales of the Company's
capital stock prior to the date hereof, and all
offers and sales of the Company's capital stock
made in connection with the Acquisition Agreements
to be issued on the First Time of Delivery, were
at all relevant times duly registered under the
Act or exempt from the registration requirements
of the Act by reason of Sections 3(b), 4(2) or
4(6) thereof and were duly registered or the
subject of an available exemption from the
registration requirements of the applicable state
securities or blue sky laws.
(vii) All of the issued shares of capital
stock of each of the GRS Companies have been duly
authorized and validly issued, are fully paid and
nonassessable, and are owned beneficially by the
Company free and clear of all liens, security
interests, pledges, charges, encumbrances,
shareholders' agreements, voting trusts, defects,
equities or claims of any nature whatsoever except
for any such liens, security interests, pledges,
charges or encumbrances which exist pursuant to
the Credit Agreement. Other than the GRS
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.
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(viii) Except as disclosed in the
Prospectus, there are no outstanding (A)
securities or obligations of the Company or any of
the GRS Companies convertible into or exchangeable
for any capital stock of the Company or any such
GRS Company, (B) warrants, rights or options to
subscribe for or purchase from the Company or any
such GRS Company any such capital stock or any
such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or
any such GRS Company to issue any shares of
capital stock, any such convertible or
exchangeable securities or obligations, or any
such warrants, rights or options.
(ix) 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 in any securities being registered
pursuant to any other registration statement filed
by the Company under the Act.
(x) Neither the Company nor any of the
GRS Companies is, or with the giving of notice or
passage of time or both, would be, (i) in
violation of its Articles of Incorporation or
Bylaws or (ii) to the best of such counsel's
knowledge, in default under any indenture,
mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company
or any such GRS Company is a party or to which any
of their respective properties or assets is
subject, except as would not have a Material
Adverse Effect on the Company and the GRS
Companies taken as a whole.
(xi) The issue and sale of the Shares
being issued at such Time of Delivery, 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 contemplated
therein (i) to the best of such counsel's
knowledge, 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 GRS
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 on the
Company and the GRS Companies taken as a
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whole, (ii) nor will such action conflict with or
violate any provision of the Articles of
Incorporation or Bylaws of the Company or any of
the GRS 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 GRS
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 transactions contemplated by this Agreement,
or the consummation of the transactions
contemplated by the Acquisition Agreements, except
the registration of the Shares under the Act and
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.
(xii) Each of the Company and the GRS
Companies has good and marketable title in fee
simple to all real property 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 such as do not interfere with the
use made and proposed to be made of such property
by the Company or such GRS Company; and any real
property and buildings held under lease by the
Company or any of the GRS Companies are held by
the Company or such GRS Company under valid,
subsisting and enforceable leases with such
exceptions as are disclosed in the Prospectus or
are not material and do not interfere with the use
made and proposed to be made of such property and
buildings by the Company or such GRS Company.
(xiii) To such counsel's knowledge and other
than as disclosed in or contemplated by the
Prospectus, there is no litigation, arbitration,
claim, proceeding (formal or informal) or
investigation pending or threatened (or any basis
therefor) in which the Company or any of the GRS
Companies is a party or of which any of their
respective properties or assets is the subject
which, if determined adversely to the Company or
any such GRS Company, would individually or in the
aggregate have a Material Adverse Effect on the
Company and the GRS Companies taken as a whole;
and, to such counsel's knowledge, neither the
Company nor any of the GRS 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 GRS Company required to take
any action in order to avoid any such violation or
default.
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(xiv) This Agreement has been duly
authorized, executed and delivered by the Company.
(xv) Each Acquisition Agreement has been
duly authorized, executed and delivered by the
Company and each party thereto and constitutes the
valid and binding agreement of the Company and
such other parties enforceable against the Company
and such other parties 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.
(xvi) The Credit Agreement has been duly
authorized, executed and delivered by the Company
and each of the GRS Companies which is a party
thereto and constitutes the valid and binding
agreement of the Company and each such GRS Company
enforceable against the Company and each such GRS
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.
(xvii) The Registration Statement, any Rule
462(b) Registration Statement and the Prospectus
and each amendment or supplement thereto (other
than the financial statements and related
schedules therein, as to which such counsel need
express no opinion), as of their respective
effective or issue dates, 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 are
accurate and fairly present the information
required to be shown; and such counsel do not know
of any statutes or legal or governmental
proceedings required to be described in the
Registration Statement, any Rule 462(b)
Registration Statement or Prospectus that are not
described as required or of any contracts or
documents of a character required to be described
in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement
which are not described and filed as required.
(xviii) 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
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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.
(xix) The Company is not, and will not be
as a result of the consummation of the
transactions contemplated by this Agreement and
the Acquisition Agreements, an "investment
company," or a company "controlled" by an
"investment company," within the meaning of the
Investment Company Act of 1940.
(xx) 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 GRS Companies
and public officials and, as to matters involving the application of
laws of any jurisdiction other than the state of Florida 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.
(e) You shall have received from Deloitte & Xxxxxx XXX, Xxxxx
Xxxxxxx XXX, Xxxxx & Xxxxxxx CPA's, P.C., Xxxxxxx & Xxxxx, X.X., and
Blue & Co., LLC 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
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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 Deloitte & Touche LLP ,
Xxxxx Xxxxxxx LLP, Xxxxx & Xxxxxxx CPA's, P.C., Xxxxxxx & Xxxxx, X.X.,
and Blue & Co., LLC and 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.
(f) Since the date of the latest audited financial statements
included in the Prospectus, none of the Company or any of the GRS
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 which in the
reasonable judgment of the Underwriters would have a Material Adverse
Effect on the Company and the GRS Companies taken as a whole, 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 position (financial or otherwise),
results of operations, net worth or business prospects of the Company
and the GRS Companies taken as a whole, 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 Nasdaq Stock Market, or any
setting of minimum prices for trading on such exchange, or in the
Common Stock by the Commission or The Nasdaq Stock Market; (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 United States 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.
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(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 of all of its 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 Nasdaq Stock Market,
subject to notice of issuance.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees 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 made by the Company in Section
1 of this Agreement; (ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any application or other document, or any amendment
or supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange (each an
"Application"); or (iii) 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, or any Application a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any 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 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 amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
any Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly for use
therein. The Company 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).
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(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company 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 any Application 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 for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending 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 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
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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 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 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 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 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, 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 under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and
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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 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 counsel
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fees and disbursements) that shall have been 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, its 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 Xxxxxxxx-Xxxxxxxx Company, LLC, 0000
Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance
Department (with a copy to King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, and if sent to the Company, shall be
mailed, delivered or telegraphed and confirmed in writing to the Company at 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx
(with a copy to Xxxxx & XxXxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxx Xxxxx).
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 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
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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.
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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. 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,
GENERAL ROOFING SERVICES, INC.
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
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXX XXXXX & ASSOCIATES, INC.
By: The Xxxxxxxx-Xxxxxxxx Company, LLC
By:
--------------------------------------
(Authorized Representative)
On behalf of each of the Underwriters
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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
BancAmerica Xxxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxx & Associates, Inc.
---------- ----------
Total...................
========== ==========
33
SCHEDULE II
ACQUIRED COMPANIES
General Roofing Acquisition Corp.
GRI of South Florida, Inc.
GRI of West Florida
GRI of Orlando, Inc.
Dakota Leasing, Inc.
C.E.I Roofing, Inc.
C.E.I West Roofing Company, Inc.
C.E.I Florida, Inc.
Xxxxxxxxx and Xxxxxxx Roofing, Inc.
Cyclone Roofing Company
Xxxxxxx Roofing, Ltd.
Xxxxxx, Xxxxxxx & Xxxxxxx Construction Company, Inc.
Advanced Roofing, Inc.
Advanced Leasing, Inc.
K&M Warehouse, Inc.
Hi-Rise Crane, Inc.
Five-K Industries, Inc. and Subsidiary
Xxxxxx-Xxxxx Roofing Company
Register Contracting Company, Inc.
Xxxxxxxxxx-Xxxxxxx Roofing Company, Inc.
H&S Investment, LLC
Architectural Sheet Metal, Inc.
Specialty Associates, Inc.
SAI Wholesale Distributors, Inc.
34
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, Deloitte & Xxxxxx
XXX, Xxxxx Xxxxxxx XXX, Xxxxx & Xxxxxxx CPA's, P.C., Xxxxxxx & Xxxxx, X.X., and
Blue & Co., LLC shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect to
the applicable company or companies 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
35
corresponding length specified by the Representatives, except
in each case for 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
consolidatedcondensed 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 (v), inquiries of certain
officials of the Company and its consolidated subsidiaries 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.
