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MPW INDUSTRIAL SERVICES GROUP, INC.
3,750,000 SHARES OF COMMON STOCKO
UNDERWRITING AGREEMENT
_______________, 1997
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters
Identified in Schedule I Annexed Hereto
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. MPW Industrial Services Group, Inc., an Ohio
corporation (the "Company"), proposes to sell 3,750,000 shares (the "Firm
Shares") of common stock, no par value per share (the "Common Stock"), to the
several underwriters identified in Schedule I annexed hereto (the
"Underwriters"), who are acting severally and not jointly. In addition, the
Company has agreed to grant to the Underwriters an option to purchase up to
562,500 additional shares of Common Stock (the "Optional Shares") as provided in
section 5 hereof. The Firm Shares and, to the extent such option is exercised,
the Optional Shares are hereinafter collectively referred to as the "Shares."
You, as representatives of the Underwriters (the "Representatives"), have
advised the Company that the Underwriters propose to make a public offering of
their respective portions of the Shares as soon hereafter as in your judgment is
advisable after the Registration Statement hereinafter referred to becomes
effective and that the Shares initially will be offered upon the terms set forth
in the Prospectus (as defined below) and the public offering price of the Shares
initially will be $____ per share.
The Company hereby confirms its agreements with the Underwriters as
follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PRINCIPAL
SHAREHOLDER. The Company and Xxxxx X. Xxxxx (the "Principal Shareholder"),
jointly and
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o Plus an option to acquire up to 562,500 additional shares of Common Stock from
the Company to cover over-allotments.
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severally, represent and warrant to, and agree with, the several Underwriters,
and shall be deemed to represent and warrant to the several Underwriters on each
Closing Date (as hereinafter defined), that:
(a) Each of the Company and the subsidiaries of the Company that are
listed on Exhibit 21.1 of the Registration Statement (as hereinafter
defined) (individually, a "Subsidiary" and collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation and in good standing under the laws of its jurisdiction of
incorporation, with full corporate and other power and authority to own,
lease and operate its properties and to conduct its business as presently
conducted and described in the Prospectus (as hereinafter defined) and the
Registration Statement (as hereinafter defined); each of the Company and
the Subsidiaries is duly registered and qualified to do business as a
foreign corporation under the laws of, and is in good standing as such in,
each jurisdiction in which such registration or qualification is required,
except where the failure to so register or qualify would not have a
material adverse effect on the financial condition, net worth, or results
of operations of the Company and the Subsidiaries, taken as a whole
("Material Adverse Effect"); and no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification. Complete and
correct copies of the articles or certificate of incorporation or formation
or other organizational document, as applicable, and code of regulations or
by-laws, as applicable, in each case as amended or restated (the "Charter"
and "By-laws," respectively), of the Company and each of the Subsidiaries
as in effect on the date hereof have been delivered to the Representatives,
and no changes thereto will be made on or subsequent to the date hereof and
prior to each Closing Date.
(b) The shares of Common Stock issued and outstanding immediately
prior to the issuance and sale of the Shares as set forth in the Prospectus
have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus and the Registration Statement. There are no preemptive,
preferential or, except as described in the Prospectus, other rights to
subscribe for or purchase any shares of Common Stock (including the
Shares), and no shares of Common Stock have been issued in violation of
such rights. The Shares to be issued and sold to the Underwriters have been
duly authorized and, when issued, delivered and paid for pursuant to this
Agreement, will be validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus and the
Registration Statement. The delivery of certificates for the Shares to be
issued and sold hereunder and payment therefor pursuant to the terms of
this Agreement will pass valid title to such Shares to the Underwriters,
free and clear of any lien, claim, encumbrance or defect in title. Except
as described in the Prospectus, there are no outstanding options, warrants
or other rights of any description, contractual or otherwise, entitling any
person to be issued any class of security by the Company or any Subsidiary,
and there are no holders of Common Stock or other securities of the Company
or any Subsidiary, or of securities that are convertible or exchangeable
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into Common Stock or other securities of the Company or any Subsidiary,
that have rights to the registration of such Common Stock or securities
under the Securities Act of 1933, as amended, and the regulations
thereunder (together, the "Act") or the securities laws or regulations of
any of the states (the "Blue Sky Laws").
(c) Except for the Subsidiaries, and as otherwise set forth in the
Prospectus, the Company has no subsidiaries and does not own any equity
interest in or control, directly or indirectly, any other corporation,
limited liability company, partnership, joint venture, association, trust
or other business organization. Except for the minority interest in
Aquatech Environmental, Inc. which the Company will own directly on the
First Closing Date (as hereinafter defined) or immediately thereafter, the
Company owns directly, or indirectly through wholly-owned Subsidiaries, all
of the issued and outstanding capital stock of each Subsidiary, free and
clear of any and all liens, claims, encumbrances or security interests, and
all such capital stock has been duly authorized and validly issued and is
fully paid and nonassessable. There are no outstanding options, warrants or
other rights of any description, contractual or otherwise, entitling any
person to subscribe for or purchase any shares of capital stock of any
Subsidiary.
(d) The Company has full corporate power and authority to enter into
and perform this Agreement, and the execution and delivery by the Company
of this Agreement and the performance by the Company of its obligations
hereunder and the consummation of the transactions described herein, have
been duly authorized with respect to the Company by all necessary corporate
action and will not: (i) violate any provisions of the Charter or By-laws
of the Company or any Subsidiary; (ii) violate any provisions of, or result
in the breach, modification or termination of, or constitute a default
under, any provision of any agreement, lease, franchise, license,
indenture, permit, mortgage, deed of trust, evidence of indebtedness or
other instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary, or any property owned or leased by the
Company or any Subsidiary, may be bound or affected; (iii) violate any
statute, ordinance, rule or regulation applicable to the Company or any
Subsidiary, or order or decree of any court, regulatory or governmental
body, arbitrator, administrative agency or instrumentality of the United
States or other country or jurisdiction having jurisdiction over the
Company or any Subsidiary; or (iv) result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any Subsidiary. No consent, approval, authorization or other order of
any court, regulatory or governmental body, arbitrator, administrative
agency or instrumentality of the United States or other country or
jurisdiction is required for the execution and delivery of this Agreement
by the Company, the performance of its obligations hereunder or the
consummation of the transactions contemplated hereby, except for compliance
with the Act, the Securities Exchange Act of 1934, as amended, and the
regulations thereunder (together, the "Exchange Act"), the Blue Sky Laws
applicable to the public offering of the Shares by the several Underwriters
and the clearance of such offering and the underwriting arrangements
evidenced hereby with the National Association of Securities Dealers, Inc.
(the "NASD"). This Agreement has been duly executed and delivered by and on
behalf of the Company and is a valid and binding
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agreement of the Company enforceable against the Company in accordance with
its terms subject to bankruptcy, insolvency, and moratorium laws and other
principles of equity.
(e) A registration statement on Form S-1 (Reg. No. 333-36887) with
respect to the Shares, including a preliminary form of prospectus, has been
prepared by the Company in conformity with the requirements of the Act and
has been filed with the Securities and Exchange Commission (the
"Commission"). Such registration statement, as finally amended and revised
at the time such registration statement was or is declared effective by the
Commission (including the information contained in the form of final
prospectus, if any, filed with the Commission pursuant to Rule 424(b) and
Rule 430A under the Act and deemed to be part of the registration statement
if the registration statement has been declared effective pursuant to Rule
430A(b)) and as thereafter amended by post-effective amendment, if any, is
herein referred to as the "Registration Statement." The related final
prospectus in the form first filed with the Commission pursuant to Rule
424(b) or, if no such filing is required, as included in the Registration
Statement, or any supplement thereto, is herein referred to as the
"Prospectus." The prospectus subject to completion in the form included in
the Registration Statement at the time of the initial filing of the
Registration Statement with the Commission, and each such prospectus as
amended from time to time until the date of the Prospectus, is referred to
herein as the "Preliminary Prospectus." The Company has prepared and filed
such amendments to the Registration Statement since its initial filing with
the Commission, if any, as may have been required to the date hereof, and
will file such additional amendments thereto as may hereafter be required.
There have been delivered to each Representative one signed copy of the
Registration Statement and each amendment thereto, if any, together with
one copy of each exhibit filed therewith, and such number of conformed
copies for each of the Underwriters of the Registration Statement and each
amendment thereto, if any (but without exhibits), and of each Preliminary
Prospectus and of the Prospectus as the Representatives have requested.
(f) Neither the Commission nor any state securities commission has
issued any order preventing or suspending the use of any Preliminary
Prospectus, nor, to the knowledge of the Company, has any proceedings for
that purpose been initiated or threatened, and each Preliminary Prospectus
filed with the Commission as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto complied
when so filed with the requirements of the Act and, as of its date, did not
include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. As of the effective date of the Registration
Statement, and at all times subsequent thereto up to each Closing Date, the
Registration Statement and the Prospectus contained or will contain all
statements that are required to be stated therein in accordance with the
Act and conformed or will conform in all respects to the requirements of
the Act, and neither the Registration Statement nor the Prospectus included
or will include any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or necessary to
make the statements, therein not misleading other than the information
described in Section 4 of this Agreement. Neither
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the Company, nor any person that controls, is controlled by (including the
Subsidiaries) or is under common control with the Company, has distributed
or will distribute prior to each Closing Date any offering material in
connection with the offering and sale of the Shares other than a
Preliminary Prospectus, the Prospectus, the Registration Statement or other
materials permitted by the Act and provided to the Representatives.
(g) Ernst & Young LLP, which has expressed its opinion with respect to
the audited consolidated financial statements and schedules filed with the
Commission and included as a part of each Preliminary Prospectus, the
Prospectus or the Registration Statement are independent accountants as
required by the Act.
(h) The consolidated financial statements and the related notes
thereto included in each of the Preliminary Prospectus, the Prospectus and
the Registration Statement present fairly the financial position, results
of operations and cash flows of the Company as of their respective dates or
for the respective periods covered thereby, all in conformity with
generally accepted accounting principles consistently applied throughout
the periods involved. The pro forma financial information and related notes
thereto included in each of the Preliminary Prospectus, the Prospectus, and
the Registration Statement have been prepared in accordance with the
applicable requirements of the Act, are all in conformity with generally
accepted accounting principles, include all adjustments necessary to
present fairly the pro forma financial condition and results of operations
at the respective dates and for the respective periods indicated and are
based upon good faith estimates and assumptions believed by the Company to
be reasonable at the time made, on the date hereof, on the First Closing
Date (as hereinafter defined), and the Second Closing Date (as hereinafter
defined), if any. The financial statement schedules, if any, included in
the Registration Statement present fairly the information required to be
stated therein on a basis consistent with the consolidated financial
statements of the Company contained therein. The Company had an outstanding
capitalization as set forth in the Registration Statement and under
"Capitalization" in the Prospectus as of the date indicated therein, and
there has been no material change thereto since such date except as
disclosed in the Prospectus. The financial and statistical information and
data relating to the Company in each Preliminary Prospectus, the Prospectus
and the Registration Statement are accurately presented and prepared on a
basis consistent with the books and records of the Company. The
consolidated financial statements and schedules and the related notes
thereto included in each Preliminary Prospectus, the Prospectus or the
Registration Statement are the only such financial statements and schedules
required under the Act to be set forth therein.
(i) Neither the Company nor any Subsidiary is in violation or in
breach of: (i) its respective Charter or By-laws; (ii) any statute,
ordinance, order, rule or regulation applicable to the Company or such
Subsidiary; (iii) any order or decree of any court, regulatory body,
arbitrator, administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction over the
Company or such Subsidiary; or (iv) any provision of any agreement, lease,
franchise, license, indenture, permit, mortgage, deed of
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trust, evidence of indebtedness or other instrument to which the Company or
such Subsidiary is a party or by which any property owned or leased by the
Company or such Subsidiary is bound or affected, except, in the cases of
clauses (ii) and (iv) above, for such violations or breaches that would not
have a Material Adverse Effect. Neither the Company nor any Subsidiary has
received notice of any material violation of any applicable statute,
ordinance, order, rule or regulation applicable to the Company or any
Subsidiary. The Company and each Subsidiary have obtained and hold, and are
in compliance with, all material permits, certificates, licenses,
approvals, registrations, franchises, consents and authorizations of
governmental or regulatory authorities required under all laws, rules and
regulations in connection with their businesses (hereinafter "permit" or
"permits"), and all of such permits are in full force and effect; and the
Company and each Subsidiary have fulfilled and performed all of their
respective obligations with respect to each such permit and no event has
occurred which would result in, or after notice or lapse of time would
result in, revocation or termination of any such permit or result in any
other impairment of the rights of the holder of such permit. Neither the
Company nor any Subsidiary is or has been (by virtue of any action,
omission to act, contract to which it is a party or other occurrence) in
material violation of any applicable foreign, federal, state, municipal or
local statutes, laws, ordinances, rules, regulations or orders (including
those relating to environmental protection, occupational safety and health
and equal employment practices) heretofore or currently in effect.
(j) There are no legal or governmental proceedings or investigations
pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary is or may be a party or to which any property
owned or leased by the Company or any Subsidiary is or may be subject,
including, without limitation, any such proceedings that are related to
environmental or employment discrimination matters, which are required to
be described in the Registration Statement or the Prospectus which are not
so described, or which question the validity of this Agreement or any
action taken or to be taken pursuant hereto. Except as described in the
Registration Statement or the Prospectus, neither the Company nor any
Subsidiary: (i) is in violation of any statute, ordinance, rule or
regulation, or any decision, order or decree of any court, regulatory body,
arbitrator, administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction over the
Company or such Subsidiary relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environmental or human exposure to hazardous or toxic substances
(collectively, "environmental laws"); (ii) owns or operates any real
property contaminated with any substance that is subject to any
environmental laws; (iii) is liable for any off-site disposal or
contamination pursuant to any environmental laws; or (iv) is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim could have a Material Adverse Effect.
(k) There is no transaction, relationship, obligation, agreement or
other document required to be described in the Registration Statement or
the Prospectus or to be filed or deemed to be filed as an exhibit to the
Registration Statement by the Act, which has not
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been described or filed as required. All contracts or agreements described
in the Registration Statement or the Prospectus or filed as an exhibit to
the Registration Statement to which the Company or any Subsidiary is a
party have been duly authorized, executed and delivered by the Company or
such Subsidiary, constitute valid and binding agreements of the Company or
such Subsidiary, and are enforceable by and against the Company or such
Subsidiary, in accordance with the respective terms thereof, subject to
bankruptcy, insolvency, and moratorium laws and other principles of equity.
(l) The Company or a Subsidiary has good and valid title to all
property and assets reflected as owned by the Company or such Subsidiary in
the Company's consolidated financial statements included in the
Registration Statement (or elsewhere in the Registration Statement or the
Prospectus), free and clear of all material liens, claims, mortgages,
security interests or other encumbrance of any kind or nature whatsoever,
except those, if any, reflected in such financial statements (or elsewhere
in the Registration Statement or the Prospectus). All property (real and
personal) held or used by the Company or a Subsidiary under leases,
licenses, franchises or other agreements is held by the Company or such
Subsidiary under valid, subsisting, binding and enforceable leases,
franchises, licenses or other agreements.
(m) Neither the Company nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company
has taken or will take, directly or indirectly, any action designed to
cause or result in, or which constituted, or which could cause or result
in, stabilization or manipulation, under the Exchange Act or otherwise, of
the price of any security of the Company to facilitate the sale or resale
of the Common Stock.
(n) Except as described in the Registration Statement or the
Prospectus, since the respective dates as of which information is given in
the Registration Statement or the Prospectus and prior to each Closing
Date: (i) neither the Company nor any Subsidiary has or will have incurred
any liability or obligation, direct or contingent, or entered into any
transaction, that is material to the Company, except as in the ordinary
course of business; (ii) the Company has not and will not have paid or
declared any dividend or other distribution with respect to its capital
stock and neither the Company nor any Subsidiary is or will be delinquent
in the payment of principal or interest on any outstanding debt obligation;
and (iii) there has not been and will not have been any change in the
capital stock, any material change in the indebtedness of the Company or
any Subsidiary, or any change or development involving or which could be
expected to involve, a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business.
(o) Neither the Company nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company
has, directly or indirectly: (i) made any unlawful contribution to any
candidate for political office, or failed to disclose fully any
contribution in violation of law; or (ii) made any payment to any federal,
state or
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foreign governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof or
applicable foreign jurisdictions.
(p) The Company or a Subsidiary owns or possesses adequate rights to
use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses presently used in or necessary for the conduct of its business or
ownership of its properties, and to the knowledge of the Company, neither
the Company nor any Subsidiary has violated or infringed upon the rights of
others, or received any notice of conflict with the asserted rights of
others, in respect thereof.
(q) The Company or a Subsidiary has in place and effective such
policies of insurance, with limits of liability in such amounts, as are
normal and prudent in the ordinary course of the business of the Company
and its Subsidiaries.
(r) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent, and,
other than the Maintenance Agreement for Specialized Plant Services between
the International Brotherhood of Painters and Allied Trades, AFL-CIO
Painters District Council No. 22 and the employer, Aquatech Environmental,
Inc., neither the Company nor any Subsidiary is a party to any collective
bargaining agreement and, to the knowledge of the Company, no union
organizational attempts are pending. There has been no change in the
relationship of the Company or any Subsidiary with any of its principal
suppliers, manufacturers, contractors or customers resulting in or that
could result in a Material Adverse Effect.
(s) Neither the Company nor any Subsidiary is an "investment company",
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company
Act of 1940, as amended.
(t) All federal, state and local tax returns required to be filed by
or on behalf of the Company or any Subsidiary have been filed (or are the
subject of valid extension) with the appropriate federal, state and local
authorities (except where the failure to file would not have a Material
Adverse Effect on the Company and the Subsidiaries, taken as a whole), and
all such tax returns, as filed, are accurate in all material respects; all
federal, state and local taxes (including estimated tax payments) required
to be shown on all such tax returns or claimed to be due from or with
respect to the business of the Company or such Subsidiary have been paid or
reflected as a liability on the financial statements of the Company or such
Subsidiary for appropriate periods; all deficiencies asserted as a result
of any federal, state or local tax audits have been paid or finally
settled, and no issue has been raised in any such audit which, by
application of the same or similar principles, reasonably could be expected
to result in a proposed deficiency for any other period not so audited; to
the knowledge of the Company, no state of facts exist or has existed which
would constitute grounds for the assessment of any material tax liability
with respect to the periods which have not been
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audited by appropriate federal, state or local authorities; there are no
outstanding agreements or waivers extending the statutory period of
limitation applicable to any federal, state or local tax return of any
period; and neither the Company nor any Subsidiary has ever been a member
of an affiliated group of corporations filing consolidated federal income
tax returns, other than a group of which the Company is the common parent.
A valid election with respect to the taxation of MPW Industrial Service,
Inc. under Subchapter S of the Internal Revenue Code of 1986, as amended,
has been continuously in effect with respect to the Company from December
31, 1986, through October 30, 1997.
(u) Except for the Company's group health, life, disability or other
welfare plan and its contributory or noncontributory defined contribution
retirement plan and defined benefit retirement plans listed on a schedule
attached hereto (collectively, the "Plans"), neither the Company nor any
Subsidiary is a participating employer or plan sponsor with respect to any
employee pension benefit plan as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any
employee welfare benefit plan as defined in Section 3(l) of ERISA,
including, without limitation, any multiemployer welfare or pension plan.
With respect to the Plans, the Company is in substantial compliance with
all applicable regulations, including ERISA and the Code. With respect to
each defined benefit retirement plan, such plan does not have benefit
liabilities (as defined in Section 4001(a)(16) of ERISA) exceeding the
assets of the plan. The Company or the administrator of each of the Plans,
as the case may be, has timely filed the reports required to be filed by
ERISA and the Code in connection with the maintenance of the Plans, and no
facts, including, without limitation, any "reportable event" as defined by
ERISA and the regulations thereunder, exist in connection with the Plans
which, under applicable law, would constitute grounds for the termination
of any of the Plans by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a trustee to
administer any of the Plans.
(v) The Company and each Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of consolidated financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorizations; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(w) None of the Company, any Subsidiary, any officer or director of
the Company or any Subsidiary, or any person who owns, of record or
beneficially, any class of securities issued by the Company is: (i) an
officer, director or partner of any brokerage firm, broker or dealer that
is a member of the NASD ("NASD Member"); or (ii) directly or indirectly, a
"person associated with" an NASD member or an "affiliate", of an NASD
member, as such
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terms are used in the NASD Rules of Fair Practice, other than Xxx Xxxxx who
is on the Board of Directors of Farm Family Financial Services, Inc., which
is a wholly-owned subsidiary of Farm Family Holdings, Inc., a member of the
NASD. In addition, neither the Company nor any Subsidiary has issued or
transferred any Common Stock, warrants, options or other securities, or any
other items of value, to any of the Underwriters or any "related person" of
any Underwriter, as such term is used in the NASD Rules of Fair Practice,
except as provided in this Agreement.
(x) The Company has prepared and filed with the Commission a
registration statement for the Common Stock pursuant to Section 12(g) of
the Exchange Act. Such registration statement either has been declared
effective by the Commission under the Exchange Act or will be declared
effective by the Commission prior to or concurrently with the commencement
of the public offering of the Shares. The Common Stock has been approved
for designation upon notice of issuance as a Nasdaq National Market
security on The Nasdaq Stock Market ("Nasdaq") concurrently with the
effectiveness of the Registration Statement.
(y) All offers and sales of the securities of the Company and each
Subsidiary prior to the date hereof were made in compliance with the Act
and all other applicable state and federal laws or regulations.
(z) The Company has obtained for the benefit of the Underwriters the
agreement, enforceable by Xxxxxxx Xxxxx & Associates, Inc. ("Xxxxxxx
Xxxxx"), of each of the officers, directors, and shareholders of the
Company, that for a period of 180 days after the date of the Prospectus,
such persons will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, offer, sell, transfer, or pledge, contract to sell,
transfer or pledge, or cause or in any way permit to be sold, transferred,
pledged, or otherwise disposed of, any: (i) shares of Common Stock; (ii)
rights to purchase shares of Common Stock (including, without limitation,
shares of Common Stock that may be deemed to be beneficially owned by any
such shareholder in accordance with the applicable regulations of the
Commission and shares of Common Stock that may be issued upon the exercise
of a stock option, warrant or other convertible security); or (iii)
securities that are convertible or exchangeable into shares of Common
Stock.
A certificate signed by any officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company and the Principal Shareholder to the
Underwriters as to the matters covered thereby. A certificate delivered by the
Company to its counsel for purposes of enabling such counsel to render the
opinion referred to in section 8(d) will also be furnished to the
Representatives and counsel for the Underwriters and shall be deemed to be
additional representations and warranties to the Underwriters by the Company as
to the matters covered thereby.
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SECTION 3. REPRESENTATION OF UNDERWRITERS. The Representatives will act as
the representatives for the several Underwriters in connection with the public
offering of the Shares, and any action under or in respect of this Agreement
taken by the Representatives will be binding upon all of the Underwriters.
SECTION 4. INFORMATION FURNISHED BY THE UNDERWRITERS. The information set
forth in the last paragraph on the outside front cover page of the Prospectus
concerning the terms of the offering by the Underwriters, the paragraph on the
inside front cover page of the Prospectus relating to stabilization practices,
and the third, fifth and eighth paragraphs appearing under the caption
"Underwriting" in the Prospectus constitute all of the information furnished to
the Company by and on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement and the Prospectus, as such
information is referred to in this Agreement.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
the Company agrees to sell to the Underwriters identified in Schedule I
annexed hereto 3,750,000 Firm Shares, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the number of Firm
Shares as hereinafter set forth at the price per share of $_____. The
obligation of each Underwriter to the Company shall be to purchase from the
Company that number of full Firm Shares which (as nearly as practicable in
full shares as determined by the Representatives) bears the same proportion
to the number of Firm Shares to be sold by the Company as the number of
shares set forth opposite the name of such Underwriter in Schedule I
annexed hereto bears to the total number of Firm Shares to be purchased by
all of the Underwriters under this Agreement.
(b) On the First Closing Date (as hereinafter defined), the Company
will deliver to the Representatives, at the offices of Xxxxxxx Xxxxx &
Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, or
through the facilities of The Depository Trust Company, for the accounts of
the several Underwriters, certificates representing the Firm Shares to be
sold by them against payment in St. Petersburg, Florida, of the purchase
price therefor by wire transfer or certified or official bank check or
checks in New York Clearing House (next day) funds payable to the order of
the Company with respect to the Firm Shares being sold by the Company. As
referred to in this Agreement, the "First Closing Date" shall be on the
third full business day after the date of the Prospectus, at 9:00 a.m.
Eastern time, or at such other date or time not later than ten full
business days after the date of the Prospectus as the Representatives and
the Company may agree. The certificates for the Firm Shares to be so
delivered will be in denominations and registered in such names as the
Representatives request by notice to the Company, prior to the First
Closing Date, and such certificates will be made available for checking and
packaging at 9:00 a.m. Eastern time on the first full business day
preceding the First Closing Date at a location to be designated by the
Representatives.
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12
(c) In addition, on the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein
set forth, the Company hereby agrees to sell to the Underwriters, and the
Underwriters, severally and not jointly, shall have the right at any time
within 30 days after the date of the Prospectus to purchase up to 562,500
Optional Shares from the Company at the purchase price per share to be paid
for the Firm Shares, for use solely in covering any over-allotments made by
the Underwriters in the sale and distribution of the Firm Shares. The
option granted hereunder may be exercised upon notice by the
Representatives to the Company within 30 days after the date of the
Prospectus setting forth the aggregate number of Optional Shares to be
purchased by the Underwriters and sold by the Company, the names and
denominations in which the certificates for such shares are to be
registered and the date and place at which such certificates will be
delivered. Such date of delivery (the "Second Closing Date") shall be
determined by the Representatives, provided that the Second Closing Date,
which may be the same as the First Closing Date, shall not be earlier than
the First Closing Date and, if after the First Closing Date, shall not be
earlier than three nor later than ten full business days after delivery of
such notice to exercise. The number of Optional Shares to be sold by the
Company pursuant to such notice shall equal that number of full Optional
Shares which (as nearly as practicable in full shares as determined by the
Representatives) bears the same proportion to the number of Optional Shares
to be purchased by the Underwriters as the number of Firm Shares to be sold
by the Company under this Agreement bears to the total number of Firm
Shares. Certificates for the Optional Shares will be made available for
checking and packaging at 9:00 a.m. Eastern time, on the first full
business day preceding the Second Closing Date at a location to be
designated by the Representatives. The manner of payment for and delivery
of (including the denominations of and the names in which certificates are
to be registered) the Optional Shares shall be the same as for the Firm
Shares.
(d) The Representatives have advised the Company that each Underwriter
has authorized the Representatives to accept delivery of the Shares and to
make payment therefor. It is understood that the Representatives,
individually and not as representatives of the Underwriters, may (but shall
not be obligated to) make payment for any Shares to be purchased by any
Underwriter whose funds shall not have been received by the Representatives
by the First Closing Date or the Second Closing Date, as the case may be,
for the account of such Underwriter, but any such payment shall not relieve
such Underwriter from any obligation under this Agreement. As referred to
in this Agreement, "Closing Date" shall mean either the First Closing Date
or the Second Closing Date.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
(a) If the effective time of the Registration Statement is not prior
to the execution and delivery of this Agreement, the Company will use its
best efforts to cause the Registration Statement to become effective at the
earliest possible time and, upon
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13
notification from the Commission that the Registration Statement has become
effective, will so advise the Representatives and counsel to the
Underwriters promptly. If the effective time of the Registration Statement
is prior to the execution and delivery of this Agreement and any
information shall have been omitted therefrom in reliance upon Rule 430A,
the Company, at the earliest possible time, will furnish the
Representatives with a copy of the Prospectus to be filed by the Company
with the Commission to comply with Rule 424(b) and Rule 430A under the Act
and, if the Representatives do not object to the contents thereof, will
comply with such Rules. Upon compliance with such Rules, the Company will
so advise the Representatives promptly. The Company will advise the
Representatives and counsel to the Underwriters promptly of the issuance by
the Commission or any state securities commission of any stop order
suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any notification of
the suspension of qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose, and
will also advise the Representatives and counsel to the Underwriters
promptly of any request of the Commission for amendment or supplement of
the Registration Statement, of any Preliminary Prospectus or of the
Prospectus, or for additional information, and the Company will not file
any amendment or supplement to the Registration Statement (either before or
after it becomes effective), to any Preliminary Prospectus or to the
Prospectus (including a prospectus filed pursuant to Rule 424(b)) if the
Representatives have not been furnished with a copy prior to such filing
(with a reasonable opportunity to review such amendment or supplement) or
if the Representatives object to such filing.
(b) If, at any time when a prospectus relating to the Shares is
required by law to be delivered in connection with sales by an Underwriter
or dealer, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact, or would omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to supplement the
Prospectus to comply with the Act, the Company promptly will advise the
Representatives and counsel to the Underwriters and will promptly prepare
and file with the Commission, at its expense, an amendment to the
Registration Statement which will correct such statement or omission or an
amendment which will effect such compliance; and, if any Underwriter is
required to deliver a prospectus after the effective date of the
Registration Statement, the Company, upon request of the Representatives,
will prepare promptly such prospectus or prospectuses as may be necessary
to permit compliance with the requirements of Section 10(a)(3) of the Act.
The Company consents to the use, in accordance with the provisions of the
Act and with the Blue Sky Laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by dealers, of each Preliminary
Prospectus.
(c) Neither the Company nor any Subsidiary will, prior to the Second
Closing Date, if any, incur any material liability or obligation, direct or
contingent, or enter into any material transaction, other than in the
ordinary course of business, or enter into any
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14
transaction with an "affiliate," as defined in Rule 405 under the Act,
which is required to be described in the Prospectus pursuant to Item 404 of
Regulation S-K under the Act, except as described in the Prospectus.
(d) Neither the Company nor any Subsidiary will, prior to the Second
Closing Date, if any, acquire any of the Common Stock nor will the Company
declare or pay any dividend or make any other distribution upon its Common
Stock payable to shareholders of record on a date prior to the Second
Closing Date, if any, except as described in the Prospectus.
(e) The Company will make generally available to its security holders
and the Representatives an earnings statement as soon as practicable, but
in no event later than 60 days after the end of its fiscal quarter in which
the first anniversary of the effective date of the Registration Statement
occurs, covering a period of 12 consecutive calendar months beginning after
the effective date of the Registration Statement, which will satisfy the
provisions of the last paragraph of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(f) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Company
will furnish to the Representatives, at the expense of the Company, copies
of the Registration Statement, the Prospectus, any Preliminary Prospectus
and all amendments and supplements to any such documents in each case as
soon as available and in such quantities as the Representatives may
reasonably request.
(g) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder for the purposes set forth in the
Prospectus.
(h) The Company will cooperate with the Representatives and counsel to
the Underwriters in qualifying or registering the Shares for sale under the
Blue Sky Laws of such jurisdictions as the Representatives designates, and
will continue such qualifications or registrations in effect so long as
reasonably requested by the Representatives to effect the distribution of
the Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified or to take any action that
would subject it to service of process in any jurisdiction where it is not
now subject. In each jurisdiction where any of the Shares shall have been
qualified as provided above, the Company will file such reports and
statements as may be required to continue such qualification for a period
of the lesser of (i) one year from the date of the Prospectus or (ii) the
time necessary to complete the Offering in such state . The Company shall
promptly prepare and file with the Commission, from time to time, such
reports as may be required to be filed by the Act and the Exchange Act, and
the Company shall comply in all respects with the undertakings given by the
Company in connection with the qualification or registration of the Shares
for offering and sale under the Blue Sky Laws.
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15
(i) During the period of three years from the date of the Prospectus,
the Company will furnish to each of the Representatives and to each of the
other Underwriters who may so request, as soon as available, each report,
statement or other document of the Company or its Board of Directors mailed
to its shareholders or filed with the Commission, and such other
information concerning the Company as the Representatives may reasonably
request.
(j) The Company shall deliver the requisite notice of issuance to
Nasdaq and shall take all necessary or appropriate action within its power
to maintain the authorization for trading of the Common Stock as a Nasdaq
National Market security, or take such action to authorize the Common Stock
for listing on the New York Stock Exchange or the American Stock Exchange,
if applicable, for a period of at least 36 months after the date of the
Prospectus.
(k) Except for the issuance and sale by the Company of Common Stock
upon exercise of presently existing outstanding stock options, the sale of
the Shares to be sold by the Company pursuant to this Agreement, and the
grant of employee stock options pursuant to the Company's 1997 Stock Option
Plan, a copy of which is filed as an exhibit to the Registration Statement,
and provided that none of such options shall be exercisable during the
180-day period herein described, the Company shall not, for a period of 180
days after the date of the Prospectus, without the prior written consent of
Xxxxxxx Xxxxx, directly or indirectly, offer, sell or otherwise dispose of,
contract to sell or otherwise dispose of, or cause or in any way permit to
be sold or otherwise disposed of, any: (i) shares of Common Stock; (ii)
rights to purchase shares of Common Stock; or (iii) securities that are
convertible or exchangeable into shares of Common Stock.
(l) The Company will maintain a transfer agent and, if required by law
or the rules of The Nasdaq Stock Market or any national securities exchange
on which the Common Stock is listed, a registrar (which, if permitted by
applicable laws and rules, may be the same entity as the transfer agent)
for its Common Stock. The Company shall, as soon as practicable after the
date hereof, use its best efforts to obtain listing in Standard and Poor's
Stock Guide, or such other recognized securities manuals for which it may
qualify for listing, and the Company shall use its best efforts to maintain
such listings for at least five years after the First Closing Date.
(m) If the sale to the Underwriters of the Shares is not consummated
for any reason other than termination of this Agreement pursuant to section
11 hereof, without limiting any other rights the Underwriters may have, the
Company agrees to reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and expenses of counsel
for the Underwriters), that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of the Shares, and the
provisions of sections 7 and 10 hereof shall at all times be effective and
apply.
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16
(n) The Company will use its best efforts to comply or cause to be
complied with the conditions to the obligations of the Underwriters in
section 8 hereof.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective, or
if this Agreement is terminated for any reason, the Company will pay the costs,
fees and expenses incurred in connection with the public offering of the Shares.
Such costs, fees and expenses to be paid by the Company include, without
limitation:
(a) All costs, fees and expenses (excluding the expenses incurred by
the Underwriters and the legal fees and disbursements of counsel for the
Underwriters, but including such fees and disbursements described in
subsection (b) of this section 7) incurred in connection with the
performance of the Company's obligations hereunder, including without
limiting the generality of the foregoing: the registration fees related to
the filing of the Registration Statement with the Commission; the fees and
expenses related to the quotation of the Shares on the Nasdaq Stock Market
or other national securities exchange; the fees and expenses of the
Company's counsel, accountants, transfer agent and registrar; the costs and
expenses incurred in connection with the preparation, printing, shipping
and delivery of the Registration Statement, each Preliminary Prospectus and
the Prospectus (including all exhibits and financial statements) and all
agreements and supplements provided for herein, this Agreement and any Blue
Sky memoranda, including, without limitation, shipping expenses via
overnight delivery and/or courier service to comply with applicable
prospectus delivery requirements; and the costs and expenses associated
with the production of materials related to, and travel expenses incurred
by the management of the Company in connection with, the various meetings
to be held between the Company's management and prospective investors.
(b) All registration fees and expenses, including legal fees and
disbursements of counsel for the Underwriters incurred in connection with
qualifying or registering all or any part of the Shares for offer and sale
under the Blue Sky Laws and the clearing of the public offering and the
underwriting arrangements evidenced hereby with the NASD.
(c) All fees and expenses related to printing of the certificates for
the Shares, and all transfer taxes, if any, with respect to the sale and
delivery of the Shares.
SECTION 8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters under this Agreement shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Principal Shareholder herein set forth as of the date hereof and as of
each Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to the following additional conditions, unless waived
in writing by the Representatives:
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(a) The Registration Statement shall have been declared effective by
the Commission not later than 5:30 p.m., Washington, D.C. time, on the day
prior to the date of this Agreement, or such later time as shall have been
consented to by the Representatives; all filings required by Rules 424(b)
and 430A under the Act shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued by the Commission or any state securities commission nor, to the
knowledge of the Company or the Principal Shareholder, shall any
proceedings for that purpose have been initiated or threatened; and any
request of the Commission or any state securities commission for inclusion
of additional information in the Registration Statement, or otherwise,
shall have been complied with to the satisfaction of the Representatives.
(b) Since the dates as of which information is given in the
Registration Statement:
(i) there shall not have occurred any change or development
involving, or which could be expected to involve, a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of business; and
(ii) the Company shall not have sustained any material loss or
interference from any labor dispute, strike, fire, flood, windstorm,
accident or other calamity (whether or not insured) or from any court
or governmental action, order or decree,
the effect of which on the Company, in any such case described in clause
(i) or (ii) above, is in the opinion of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus.
(c) The Representatives shall not have advised the Company that the
Registration Statement or the Prospectus contains an untrue statement of
fact that, in the opinion of the Representatives or counsel for the
Underwriters, is material, or omits to state a fact that, in the opinion of
the Representatives or such counsel, is material and is required to be
stated therein or necessary to make the statements therein not misleading.
(d) The Representatives shall have received an opinion of Xxxxx, Day,
Xxxxxx & Xxxxx, counsel for the Company addressed to the Representatives,
as the representatives of the Underwriters, and dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect that:
(i) The Company has been duly organized and is validly existing
as a corporation and in good standing in its jurisdiction of
incorporation, with full corporate power and authority to own, lease
and operate its properties and conduct its business as presently
conducted and as described in the Prospectus and the
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18
Registration Statement; the Company is not registered and qualified to
do business as a foreign corporation under the laws of any
jurisdiction;
(ii) The authorized capital stock of the Company consists of
30,000,000 shares of Common Stock, no par value per share, and
5,000,000 shares of Preferred Stock, par value $0.01 per share, and
all such stock conforms as to legal matters to the descriptions
thereof in the "Description of Capital Stock" in the Prospectus and
the Registration Statement;
(iii) The issued and outstanding shares of capital stock of the
Company immediately prior to the issuance and sale of the Shares to be
sold by the Company hereunder have been duly authorized and validly
issued, are fully paid and nonassessable, and there are no statutory
preemptive rights to subscribe for or purchase any shares of capital
stock of the Company;
(iv) Except for the Subsidiaries, the Company has no
subsidiaries, and the Company does not own any equity interest in or
control, directly or indirectly, any other corporation, limited
liability company, partnership, joint venture, association, trust or
other business organization except as described in the Prospectus and
the Registration Statement; each of MPW Industrial Services, Inc., MPW
Management Services Corp., Weston Engineering, Inc., Aquatech
Environmental, Inc., ESI International, Inc., and ESI North Limited
(collectively, the "Significant Subsidiaries" and individually, a
"Significant Subsidiary") has been duly incorporated and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and the Registration Statement; each Significant Subsidiary
is duly registered or qualified to do business as a foreign
corporation under the laws of, and is in good standing as such in, the
jurisdictions set forth in Attachment 1 to such opinion; the issued
and outstanding shares of the capital stock of each Subsidiary have
been duly authorized and validly issued, are fully paid and
nonassessable and there are no statutory preemptive rights to
subscribe for or purchase any shares of capital stock of any
Significant Subsidiary; the Company owns directly or indirectly and,
to such counsel's knowledge, beneficially all of the issued and
outstanding capital stock of each Subsidiary, free and clear of any
and all liens, claims, encumbrances and security interests;
(v) The certificates for the Shares to be delivered hereunder
conform in all material respects to the requirements of applicable
law; and when duly countersigned by the Company's transfer agent, and
delivered to the Representatives or upon the order of the
Representatives against payment of the agreed consideration therefor
in accordance with the provisions of this Agreement, the Shares to be
sold by the Company represented thereby will be duly authorized and
validly issued,
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fully paid and nonassessable, and free of any preemptive rights to
subscribe for or purchase shares of Common Stock;
(vi) The Registration Statement has become effective under the
Act, and to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or are
threatened under the Act or any Blue Sky Laws; the Registration
Statement and the Prospectus and any amendment or supplement thereto
(except for the financial statements and other statistical or
financial data included therein as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act; no facts have come to the attention of such
counsel which lead it to believe that either the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the First Closing Date or the Second Closing Date,
as the case may be, contained any untrue statement of a material fact
or omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made (except for the
financial statements and other financial and statistical data included
therein as to which such counsel need express no opinion); to the best
of such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened, including, without limitation, any
such proceedings that are related to environmental or employment
discrimination matters, required to be described in the Registration
Statement or the Prospectus which are not so described or which
question the validity of this Agreement or any action taken or to be
taken pursuant thereto, nor is there any transaction, relationship,
agreement, contract or other document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement by the Act, which is
not described or filed as required;
(vii) The Company has full corporate power and authority to enter
into and perform this Agreement; the performance of the Company's
obligations hereunder and the consummation of the transactions
described herein have been duly authorized by the Company by all
necessary corporate action and this Agreement has been duly executed
and delivered by and on behalf of the Company, and is a legal, valid
and binding agreement of the Company enforceable against the Company
in accordance with its terms, except that rights to indemnity or
contribution may be limited by applicable law or the public policy
underlying such law and except as enforceability of this Agreement may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, and by equitable
principles limiting the right to specific performance or other
equitable relief; no consent, approval, authorization or other order
or decree of
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20
any court, regulatory or governmental body, arbitrator, administrative
agency or other instrumentality of the United States or other country
or jurisdiction having jurisdiction over the Company is required for
the execution and delivery of this Agreement or the consummation of
the transactions contemplated by this Agreement (except for compliance
with the Act, the Exchange Act, applicable Blue Sky Laws and the
clearance of the underwriting arrangements by the NASD);
(viii) The execution, delivery and performance of this Agreement
by the Company will not: (A) violate any provisions of the Charter or
By-laws of the Company or any Subsidiary; (B) violate, to the best of
such counsel's knowledge, any provisions of, or result in the breach,
modification or termination of, or constitute a default under, any
agreement, lease, franchise, license, indenture, permit, mortgage,
deed of trust, other evidence of indebtedness or other instrument to
which the Company or any Subsidiary is a party or by which the Company
or such Subsidiary, or any of their respective owned or leased
property is bound, and which is filed as an exhibit to the
Registration Statement; or (C) violate, to the best of such counsel's
knowledge, any statute, ordinance, order, rule, decree or regulation
of any court, regulatory or governmental body, arbitrator,
administrative agency or other instrumentality of the United States or
other country or jurisdiction having jurisdiction over the Company or
any Subsidiary (assuming compliance with all applicable federal and
state securities laws);
(ix) To the best of such counsel's knowledge, except as described
in the Prospectus, there are no holders of Common Stock or other
securities of the Company, or securities that are convertible or
exchangeable into Common Stock or other securities of the Company,
that have rights to the registration of such securities under the Act
or any Blue Sky Laws;
(x) Neither the Company nor any Subsidiary is an "investment
company", an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended, and, upon its
receipt of any proceeds from the sale of the Shares, the Company will
not become or be deemed to be an "investment company" thereunder;
(xi) The description in the Registration Statement and the
Prospectus of statutes, law, regulations, legal and governmental
proceedings, and contracts and other legal documents described
therein, insofar as they purport to summarize or characterize certain
of the provisions thereof, fairly and correctly present, in all
material respects, the information required to be included therein by
the Act; and
In rendering such opinion, counsel for the Company may rely, to the extent
counsel deems such reliance proper, as to matters of fact upon certificates of
officers of the Company and of
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21
governmental officials, and copies of all such certificates shall be furnished
to the Representatives and for the Underwriters on or before each Closing Date.
(e) The Representatives shall have received an opinion of
XxXxxxxxx, Will & Xxxxx, counsel for the Underwriters, dated the First
Closing Date or the Second Closing Date, as the case may be, with
respect to the issuance and sale of the Shares by the Company, the
Registration Statement and other related matters as the
Representatives may require, and the Company shall have furnished to
such counsel such documents and shall have exhibited to them such
papers and records as they request for the purpose of enabling them to
pass upon such matters.
(f) The Representatives shall have received on each Closing Date,
a certificate of Xxxxx X. Xxxxx, Chief Executive Officer, and Xxx X.
Xxxx, President and Chief Operating Officer, of the Company, to the
effect that:
(i) The representations and warranties of the Company and
the Principal Shareholder set forth in section 2 hereof are true
and correct as of the date of this Agreement and as of the date
of such certificate, and the Company has complied with all the
agreements and satisfied all the conditions to be performed or
satisfied by it at or prior to the date of such certificate;
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary
Prospectus or any amendment or supplement thereto; no stop order
suspending the effectiveness of the Registration Statement has
been issued; and to the knowledge of the respective signatories,
no proceedings for that purpose have been initiated or are
pending or contemplated under the Act or under the Blue Sky Laws
of any jurisdiction;
(iii) Each of the respective signatories has carefully
examined the Registration Statement and the Prospectus, and any
amendment or supplement thereto, and such documents contain all
statements required to be stated therein, and do not include any
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and since the date on
which the Registration Statement was initially filed, no event
has occurred that was required to be set forth in an amended or
supplemented prospectus or in an amendment to the Registration
Statement that has not been so set forth; and
(iv) Since the date on which the Registration Statement was
initially filed with the Commission, there shall not have
occurred any change or development involving, or which could be
expected to involve, a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business,
except as disclosed in the Prospectus and the Registration
Statement as heretofore amended or
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22
(but only if the Representatives expressly consent thereto in
writing) as disclosed in an amendment or supplement thereto filed
with the Commission and delivered to the Representatives after
the execution of this Agreement; since such date and except as so
disclosed or in the ordinary course of business, the Company has
not incurred any liability or obligation, direct or indirect, or
entered into any transaction which is material to the Company;
since such date and except as so disclosed, there has not been
any change in the outstanding capital stock of the Company, or
any change that is material to the Company in the short-term debt
or long-term debt of the Company; since such date and except as
so disclosed, the Company has not acquired any of the Common
Stock or other capital stock of the Company nor has the Company
declared or paid any dividend, or made any other distribution,
upon its outstanding Common Stock payable to shareholders of
record on a date prior to such Closing Date; since such date and
except as so disclosed, the Company has not incurred any material
contingent obligations, and no material litigation is pending or
threatened against the Company; and, since such date and except
as so disclosed, the Company has not sustained any material loss
or interference from any strike, fire, flood, windstorm, accident
or other calamity (whether or not insured) or from any court or
governmental action, order or decree.
The delivery of the certificate provided for in this subsection (f) shall
be and constitute a representation and warranty of the Company as to the facts
required in the immediately foregoing clauses (i), (ii), (iii) and (iv) to be
set forth in said certificate.
(g) At the time this Agreement is executed and also on each
Closing Date, there shall be delivered to the Representatives a letter
addressed to the Representatives, as the representatives of the
Underwriters, from Ernst & Young LLP, the Company's independent
accountants, the first letter to be dated the date of this Agreement,
the second letter to be dated the First Closing Date and the third
letter (if applicable) to be dated the Second Closing Date, which
shall be in form and substance satisfactory to the Representatives and
shall contain information as of a date within five days of the date of
such letter. There shall not have been any change or decrease set
forth in any of the letters referred to in this subsection (g) which
makes it impracticable or inadvisable in the judgment of the
Representatives to proceed with the public offering or purchase of the
Shares as contemplated hereby.
(h) The Shares shall have been qualified or registered for sale
under the Blue Sky Laws of such jurisdictions as shall have been
specified by the Representatives, if any, the underwriting terms and
arrangements for the offering shall have been cleared by the NASD, and
the Common Stock shall have been designated for inclusion as a Nasdaq
National Market security on The Nasdaq Stock Market and shall have
been registered under the Exchange Act.
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(i) Such further certificates and documents as the
Representatives may reasonably request (including certificates of
officers of the Company).
(j) Each of the directors, officers, and shareholders of the
Company shall have entered into the holdback agreements described in
Section 2(z) above.
(k) Each of the shareholders of the Company owning more than 5%
of the Common Stock of the Company shall have entered into the Tax
Indemnification Agreement with the Company in the form and substance
acceptable to the Underwriters.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to the
Representatives and to XxXxxxxxx, Will & Xxxxx, counsel for the Underwriters.
The Company shall furnish the Representatives with such manually signed or
conformed copies of such opinions, certificates, letters and documents as the
Representatives may reasonably request.
If any condition to the Underwriters' obligations hereunder to be satisfied
prior to or at either Closing Date is not so satisfied, this Agreement at the
election of the Representatives will terminate upon notification to the Company
without liability on the part of any Underwriter, including the Representatives,
the Company except for the provisions of section 6(n) hereof, the expenses to be
paid by the Company pursuant to section 7 hereof and except to the extent
provided in section 10 hereof.
SECTION 9. MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT. The Company
will use its best efforts to prevent the issuance of any stop order suspending
the effectiveness of the Registration Statement, and, if such stop order is
issued, to obtain as soon as possible the lifting thereof.
SECTION 10. INDEMNIFICATION.
(a) The Company and the Principal Shareholder, jointly and severally
agree to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of the Act or the
Exchange Act, from and against any losses, claims, damages, expenses,
liabilities or actions in respect thereof ("Claims"), joint or several, to
which such Underwriter or each such controlling person may become subject
under the Act, the Exchange Act, Blue Sky Laws or other federal or state
statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation), insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, or in any application filed under any Blue Sky Law or other
document executed by the Company for that purpose or based upon written
information furnished by the Company and filed in any state or other
jurisdiction to qualify any or all of the Shares under the securities laws
thereof
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24
(any such document, application or information being hereinafter called a
"Blue Sky 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. The
Company and the Principal Shareholder agree to reimburse each Underwriter
and each such controlling person for any legal fees or other expenses
incurred by such Underwriter or any such controlling person in connection
with investigating or defending any such Claim; provided, however, that the
Company and the Principal Shareholder will not be liable in any such case
to the extent that: (i) any such Claim arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus or supplement thereto or in any Blue Sky Application in
reliance upon and in conformity with the written information furnished to
the Company pursuant to section 4 of this Agreement; or (ii) such statement
or omission was contained or made in any Preliminary Prospectus and
corrected in the Prospectus and (1) any such Claim suffered or incurred by
any Underwriter (or any person who controls any Underwriter) resulted from
an action, claim or suit by any person who purchased Shares which are the
subject thereof from such Underwriter in the offering, and (2) such
Underwriter failed to deliver or provide a copy of the Prospectus to such
person at or prior to the confirmation of the sale of such Shares in any
case where such delivery is required by the Act, unless such failure was
due to failure by the Company to provide copies of the Prospectus to the
Underwriters as required by this Agreement. The indemnification obligations
of the Company and the Principal Shareholder as provided above are in
addition to and in no way limit any liabilities the Company and the
Principal Shareholder may otherwise have. Notwithstanding any provision of
this Section 10 to the contrary, the liability of the Principal Shareholder
to the Underwriters arising under this Section 10 shall not exceed $16
million.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors and each of its officers
who signs the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act and the
Principal Shareholder against any Claim to which the Company, or any such
director, officer, controlling person or Principal Shareholder may become
subject under the Act, the Exchange Act, Blue Sky Laws or other federal or
state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter and Xxxxxxx Xxxxx),
insofar as such Claim arises out of or is based upon any untrue or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky Application, or arises out of or is
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 the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or in
any Blue Sky Application, in reliance solely upon
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25
and in conformity with the written information furnished by the
Representatives to the Company pursuant to section 4 of this Agreement.
Each Underwriter will severally reimburse any legal fees or other expenses
incurred by the Company, or any such director, officer, controlling person
or Principal Shareholder in connection with investigating or defending any
such Claim, and from any and all Claims solely resulting from failure of an
Underwriter to deliver a Prospectus, if the person asserting such Claim
purchased Shares from such Underwriter and a copy of the Prospectus (as
then amended if the Company shall have furnished any amendments thereto)
was not sent or given by or on behalf of such Underwriter to such person,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended) would have cured the defect giving rise to such
Claim. The indemnification obligations of each Underwriter as provided
above are in addition to any liabilities any such Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action in respect of a Claim, such
indemnified party will, if a Claim in respect thereof is to be made against
an indemnifying party under this section, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve an indemnifying party from any
liability it may have to any indemnified party under this section or
otherwise except to the extent that the indemnifying party was prejudiced
by such failure to notify. In case any such action is brought against any
indemnified party, and such indemnified party notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate in and, to the extent that he, she or it may wish, jointly
with all other indemnifying parties, similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and any indemnifying party and the indemnified party
shall, pursuant to written advice from counsel, have reasonably concluded
that there may be legal defenses available to the indemnified party and/or
other indemnified parties which are different from or additional to those
available to any indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the
defense of such action and upon approval by the indemnified party of
counsel selected by the indemnifying party, the indemnifying party will not
be liable to such indemnified party under this section for any legal fees
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel in
connection with the assumption of legal defenses in accordance with
the proviso to the last sentence of subsection (c) of this section (it
being understood, however, that
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26
the indemnifying party shall not be liable for the legal fees and
expenses of more than one separate counsel, approved by Xxxxxxx Xxxxx,
if one or more of the Underwriters or their controlling persons are
the indemnified parties);
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the indemnified
party's notice to the indemnifying party of commencement of the
action; or
(iii) the indemnifying party has authorized in writing the
employment of counsel at the expense of the indemnifying party.
(e) If the indemnification provided for in this section is unavailable
to or insufficient to hold harmless an indemnified party under subsection
(a) or (b) hereof in respect of any Claim referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall,
subject to the limitations hereinafter set forth, contribute to the amount
paid or payable by such indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Principal Shareholder, and the
Underwriters from the offering of the Shares; or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company, the Principal
Shareholder, and the Underwriters in connection with the statements or
omissions which resulted in such Claim, as well as any other relevant
equitable considerations.
The relative benefits received by each of the Company, the Principal
Shareholder and the Underwriters shall be deemed to be in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the amount of the underwriting discounts and commissions per
share appearing on the cover page of the Prospectus bears to the public offering
price per share appearing thereon, and the Company and the Principal Shareholder
are responsible for the remaining portion. The relative fault of the Company,
the Principal Shareholder and the Underwriters 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, the Principal Shareholder or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the Claims referred to above shall be
deemed to include, subject to the limitations set forth in subsections (c) and
(d) of this section, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
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27
(f) The Company, the Principal Shareholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
section were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method or allocation which does not take into account the equitable
considerations referred to in subsection (d) of this section.
Notwithstanding the other provisions of this section, no Underwriter shall
be required to contribute any amount that is greater than 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 to contribute pursuant to this section are
several in proportion to their respective underwriting commitments and not
joint.
SECTION 11. DEFAULT OF UNDERWRITERS. It shall be a condition to the
obligations of each Underwriter to purchase the Shares in the manner as
described herein, that, except as hereinafter provided in this section, each of
the Underwriters shall purchase and pay for all the Shares agreed to be
purchased by such Underwriter hereunder upon tender to the Representatives of
all such Shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in their obligations to purchase Shares hereunder on either
the First Closing Date or the Second Closing Date and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of Shares which the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements for the purchase of such Shares by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date the nondefaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Shares
which such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number of
Shares with respect to which such default or defaults occur is greater than 10%
of the total number of Shares which the Underwriters are obligated to purchase
on such Closing Date, and arrangements satisfactory to the Representatives for
the purchase of such Shares by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Company and the Principal Shareholder except for
the expenses to be paid by the Company pursuant to section 7 hereof and except
to the extent provided in section 10 hereof.
In the event that Shares to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date or the Second Closing Date, as the case may be, for not more than
seven business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used
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in this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
SECTION 12. EFFECTIVE DATE. This Agreement shall become effective upon (i)
the execution and delivery of this Agreement by the parties hereto and (ii)
release of notification of the effectiveness of the Registration Statement by
the Commission. Such execution and delivery shall include an executed copy of
this Agreement sent by facsimile transmission or other means of transmitting
written documents.
SECTION 13. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Representatives prior to or on the First Closing Date and the
over-allotment option from the Company referred to in section 5 hereof, if
exercised, may be cancelled by the Representatives at any time prior to or on
the Second Closing Date, if in the judgment of the Representatives, payment for
and delivery of the Shares is rendered impracticable or inadvisable because:
(a) additional governmental restrictions, not in force and effect on
the date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or the American Stock Exchange,
or trading in securities generally shall have been suspended or materially
limited on either such exchange or on The Nasdaq Stock Market or a general
banking moratorium shall have been established by either federal or state
authorities in New York, Ohio, or Florida;
(b) any event shall have occurred or shall exist which makes untrue or
incorrect in any material respect any statement or information contained in
the Registration Statement or which is not reflected in the Registration
Statement but should be reflected therein to make the statements or
information contained therein not misleading in any material respect which
cannot be cured by an amendment thereto; or
(c) an outbreak or escalation of hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated to such
extent, in the judgment of the Representatives, as to have a material
adverse effect on the financial markets of the United States, or to make it
impracticable or inadvisable to proceed with completion of the sale of and
payment for the Shares as provided in this Agreement.
Any termination pursuant to this Section shall be without liability on the
part of any Underwriter to the Company and the Principal Shareholder, or on the
part of the Company and the Principal Shareholder to any Underwriter, except for
expenses to be paid by the Company pursuant to section 6 hereof or reimbursed by
the Company pursuant to section 6(n) hereof and except as to indemnification to
the extent provided in section 10 hereof.
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SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties, covenants and
other statements of the Company, of its officers or directors, of the Principal
Shareholder and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, the Principal Shareholder
or the Company or any of its or their partners, officers, directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Shares sold hereunder.
SECTION 15. NOTICES. All communications hereunder will be in writing and,
if sent to the Representatives, will be mailed, delivered, telecopied (with
receipt confirmed) or telegraphed and confirmed to Xxxxxxx Xxxxx & Associates,
Inc. at 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx
X. Xxxxxxx, Senior Vice President, with a copy to Xxxxxxx X.X. Bryant,
McDermott, Will & Xxxxx, 000 X. Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and if sent to
the Company or the Principal Shareholder, will be mailed, delivered, telecopied
(with receipt confirmed) or telegraphed and confirmed to the Company or the
Principal Shareholder, respectively at MPW Industrial Services Group, Inc., 0000
Xxxxxxxxx Xxxx, X.X., Xxxxxx, Xxxx, 00000, Attention: Xxx X. Xxxx, with a copy
to Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx,
00000, Attention: Xxxxxx X. Xxxxxx.
SECTION 16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in section 10 hereof and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Shares as such from any of the Underwriters merely
by reason of such purchase.
SECTION 17. PARTIAL UNENFORCEABILITY. If any section, paragraph, clause or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph clause or provision hereof.
SECTION 18. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Ohio
without reference to conflict of law principles thereunder. This Agreement may
be signed in various counterparts which together shall constitute one and the
same instrument, and shall be effective when at least one counterpart hereof
shall have been executed by or on behalf of each party hereto.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company, the Principal Shareholder and the
several Underwriters, including the Representatives, all in accordance with its
terms.
Very truly yours,
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30
MPW INDUSTRIAL SERVICES GROUP, INC.
By:
--------------------------------
THE PRINCIPAL SHAREHOLDER:
--------------------------
Xxxxx X. Xxxxx
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The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
By: XXXXXXX XXXXX & ASSOCIATES, INC.
Acting as Representatives of the several
Underwriters (including themselves) identified
in Schedule I annexed hereto.
By:
-----------------------------------
Authorized Representative
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32
MPW INDUSTRIAL SERVICES GROUP, INC.
SCHEDULE I
Number of Firm Shares
Name of Underwriter to be Purchased
Xxxxxxx Xxxxx & Associates, Inc. . . . . . .
Xxxxxx X. Xxxxx & Co. Incorporated. . . . . .
---------------------
Total 3,750,000
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