3,578,644 Shares
PAMECO CORPORATION
Class A Common Stock
UNDERWRITING AGREEMENT
May __, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. INCORPORATED
As representatives of the
several underwriters
named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Pameco Corporation, a Georgia corporation (the "Company"), and the
stockholders of the Company named in Schedule II hereto, (collectively, the
"Selling Stockholders"), severally propose to sell an aggregate of 3,578,644
shares of Class A Common Stock, par value $0.01 per share, of the Company (the
"Firm Shares"), to the several underwriters named in Schedule I hereto (the
"Underwriters"). The Firm Shares consist of 3,000,000 shares to be issued and
sold by the Company and 578,644 outstanding shares to be sold by the Selling
Stockholders. The Company also proposes to issue and sell to the several
Underwriters not more than 563,796 additional shares of Class A Common Stock,
par value $0.01 per share, of the Company (the "Additional Shares"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are herein collectively called the Shares. The shares
of Class A Common Stock, par value $0.01 per share, of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the Class A Common Stock. The Class A Common Stock and the Class
B Common Stock, par value $0.01 per share, of the Company are hereinafter
collectively referred to as the Common Stock. The Company and the Selling
Stockholders are hereinafter collectively called the Sellers.
1. Registration Statement and Prospectus. The Company has prepared and filed
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with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively called the "Act"), a
registration statement on Form S-1 including a prospectus relating to the
Shares, which may be amended. The registration statement as amended at the
time when it becomes effective, including a registration statement (if any)
filed pursuant to Rule 462(b) under the Act increasing the size of the offering
registered under the Act and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or
Rule 434 under the Act, is hereinafter referred to as the Registration
Statement; and the Prospectus (including any prospectus subject to completion
and any term sheet meeting the requirements of Rule 434(b) under the Act, taken
together as the prospectus provided by the Company to meet the requirements of
Section 10(a) of the Act) in the respective forms first used to confirm sales of
Shares are hereinafter referred to as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations and
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warranties contained in this Agreement, and subject to its terms and conditions,
(i) the Company agrees to issue and sell 3,000,000 Firm Shares, (ii) each
Selling Stockholder agrees, severally and not jointly, to sell the number of
Firm Shares set forth opposite such Selling Stockholder's name in Schedule II
hereto and (iii) each Underwriter agrees, severally and not jointly, to purchase
from each Seller at a price per share of $______ (the "Purchase Price") the
number of Firm Shares (subject to such adjustments to eliminate fractional
shares as you may determine) which bears the same proportion to the total number
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of Firm Shares to be sold by such Seller as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Company agrees to
issue and sell up to 563,796 Additional Shares and (ii) the Underwriters shall
have the right to purchase, severally and not jointly, up to an aggregate
563,796 Additional Shares from the Company at the Purchase Price. Additional
Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. The Underwriters may
exercise their right to purchase Additional Shares in whole or in part from time
to time by giving written notice thereof to the Company within 30 days after the
date of this Agreement. You shall give any such notice on behalf of the
Underwriters and such notice shall specify the aggregate number of Additional
Shares to be purchased pursuant to such exercise and the date for payment and
delivery thereof. The date specified in any such notice shall be a business day
(i) no earlier than the Closing Date (as hereinafter defined), (ii) no later
than ten business days after such notice has been given and (iii) no earlier
than two business days after such notice has been given. If any Additional
Shares are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase from the Company the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears the
same proportion to the total number of Additional Shares to be purchased from
the Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
The Selling Stockholders hereby agree, severally and not jointly, and the
Company hereby agrees, not to offer, sell, pledge, contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of
directly or indirectly any shares of common stock of the Company or any
securities convertible into or exercisable or exchangeable for common stock of
the Company (collectively, "Common") or in any other manner transfer all or a
portion of the economic consequences associated with the ownership of any Common
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(regardless of whether any of the foregoing transactions is to be settled by the
delivery of Common, in cash or otherwise), except to the Underwriters pursuant
to this Agreement, for a period of 180 days after the date of the Prospectus
without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, and the Company shall, concurrently with the execution of this
Agreement, deliver an agreement executed by (i) each of the directors and
officers of the Company and (ii) each stockholder listed on Annex I hereto to
the effect that such person will not engage in any of the foregoing transactions
with respect to any Common, in each case beneficially owned by such person
during such period. Notwithstanding the foregoing, during such 180 period (i)
the Company may grant stock options pursuant to the Company's existing stock
option plan, (ii) the Company may issue shares of Common upon the exercise of an
option or warrant or the conversion of a security outstanding on the date
hereof; (iii) each of the Company's directors and officers, each stockholder
listed on Annex I, and, during the period after Closing, each Selling
Stockholder, may transfer Common stock by way of off-market transfers to those
of their respective affiliates (as that term is defined in Rule 144 under the
Act) which agree in writing with the Underwriters to be bound by the provisions
of this paragraph; and (iv) each of the Company's directors and officers, each
stockholder listed on Annex I, and, during the period after Closing, each
Selling Stockholder, may pledge Common to any person which, prior to such pledge
taking effect, agrees to be bound by the provisions of this paragraph.
3. Terms of Public Offering. The Sellers are advised by you that the
------------------------
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the execution and delivery of this Agreement as in
your judgment is advisable and (ii) initially to offer the Shares upon the terms
set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment for the
--------------------
Firm Shares shall be made at 9:00 A.M., [New York City] [Atlanta] time, on May
__, 1997 (the "Closing Date"), at the offices of [Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10022][▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇], or at such other place as
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you [and the Company] shall designate. The Closing Date and the location of
delivery of and the form of payment for the Firm Shares may be varied by
agreement between you and the Sellers.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at such place as you shall designate
at 9:00 A.M., New York City time, on the date specified in the applicable
exercise notice given by you pursuant to Section 2 (an "Option Closing Date").
Any such Option Closing Date and the location of delivery of and the form of
payment for such Additional Shares may be varied by agreement between you and
the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or an Option Closing Date, as the case
may be. Such certificates shall be made available to you for inspection not
later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or an Option Closing Date, as the case may be. Certificates in
definitive form evidencing the Shares shall be delivered to you on the Closing
Date or an Option Closing Date, as the case may be, with any transfer taxes
thereon duly paid by the respective Sellers, for the respective accounts of the
several Underwriters, against payment to the Sellers of the Purchase Price
therefor by wire transfer of Federal or other funds immediately available in New
York City.
5. Agreements of the Company. The Company agrees with you:
-------------------------
To advise you promptly and, if requested by you, to confirm such advice in
writing, (i) when the Registration Statement has become effective and when any
post-effective amendment to it becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purposes (iv) if the Company is required to file a registration
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statement pursuant to Rule 462(b) under the Act increasing the size
of the offering (a "Rule 462(b) Registration Statement") after the effectiveness
of this Agreement, when the Rule 462(b) Registration Statement has become
effective and (v) of the happening of any event during the period referred to in
paragraph (d) below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires the making of
any additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you, without charge, 4 signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you and each Underwriter designated by
you such number of conformed copies of the Registration Statement as so filed
and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Registration Statement and the Prospectus in a form
approved by you and not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or to
make any amendment or supplement to the Prospectus including the issuance or
filings of any term sheet within the meaning of Rule 434 of which you shall not
previously have been advised or to which you shall reasonably object; and to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment or supplement to the Registration Statement or the Prospectus
including the issuance or filings of any term sheet within the meaning of Rule
434 which may be necessary or advisable in connection with the distribution of
the Shares by you, and to use its best efforts to cause any such amendment to
the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M. New York City time on the business day next
succeeding the date of this Agreement, and from time to time thereafter for such
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period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales of the Shares by an
Underwriter or a dealer, to furnish to each Underwriter and dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in paragraph (d) any event shall occur
as a result of which, in the opinion of counsel for the Underwriters it becomes
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to such dealers as you shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such qualification in effect so long as required
for distribution of the Shares and to file such consents to service of process
or other documents as may be necessary in order to effect such registration or
qualification.
(g) To mail and make generally available to its stockholders as soon as
reasonably practicable an earnings statement covering a period of at least
twelve months after the effective date of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy the
provisions of Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
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(h) During the period of five years after the date of this Agreement, (i)
to mail as soon as reasonably practicable after the end of each fiscal year to
the record holders of its Common Stock a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent certified public accountants, and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(i) During the period referred to in paragraph (h), to furnish to you as
soon as available a copy of each report or other publicly available information
of the Company mailed to the holders of Common Stock or filed with the
Commission and such other publicly available information concerning the Company
and its subsidiaries as you may reasonably request.
(j) If the Registration Statement at the time of the execution and delivery
of this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so covered
in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(k) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
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expenses incident to the performance of its obligations under this Agreement
including (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Shares under the Act and all other fees or expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing prior to
or during the period specified in paragraph (d), including the mailing and
delivering of copies thereof to the Underwriters and dealers in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) all costs of printing or producing
this Agreement and any other documents in connection with the offering,
purchase, sale or delivery of the Shares, (iv) all expenses in connection with
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and the cost of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the offering
of the Shares by the National Association of Securities Dealers, Inc., (vi) all
fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Class A Common Stock and all
costs and expenses incident to the listing of the Shares on the New York Stock
Exchange and any other national securities exchanges and foreign stock exchanges
and, if applicable, the quotation of the Shares on the NASDAQ National Market,
(vii) the cost of printing certificates representing the Shares, (viii) the
costs and charges of any transfer agent, registrar or depositary, and (ix) and
all other costs and expenses incident to the performance of the obligations of
the Sellers hereunder for which provision is not otherwise made in this Section
3.
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(l) To use its best efforts to list, subject to notice of issuance, the
Shares on the New York Stock Exchange and to maintain the listing of the Shares
on the New York Stock Exchange for a period of three years after the effective
date of the Registration Statement.
(m) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
6. Representations and Warranties of the Company. The Company represents and
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warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not contain 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, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Act and (iii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
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(c) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, and each Registration Statement filed pursuant to Rule
462(b) under the Act, if any, complied when so filed in all material respects
with the Act and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph (c) do not apply to statements or omissions in any preliminary
prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and Pameco Securitization Corporation (the
"Subsidiary") has been duly incorporated, is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and the Subsidiary, taken as a whole. The Subsidiary is the only subsidiary of
the Company.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or the Subsidiary related to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of the Company or any of
its subsidiaries, except as otherwise disclosed in the Registration Statement.
All of the outstanding shares of capital stock of, or other ownership
interests in, the Subsidiary have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company, free and clear
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of any security interest, claim, lien, encumbrance or adverse interest of any
nature.
(f) All the outstanding shares of capital stock of the Company (including
the Shares to be sold by the Selling Stockholders) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights; and the Shares to be issued and sold by the
Company hereunder have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(g) The authorized capital stock of the Company, including the Common
Stock, conforms as to legal matters to the description thereof contained in the
Prospectus.
(h) Neither the Company nor the Subsidiary is in violation of its
respective charter, articles of incorporation or by-laws or in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan or credit agreement, mortgage, lease or other agreement or
instrument that is material to the Company and the Subsidiary, taken as a whole,
to which the Company or the Subsidiary is a party or by which it or the
Subsidiary or their respective property is bound.
(i) The execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of or qualification with any
court, regulatory body, administrative agency or other governmental body
(except as such may be required under the securities or Blue Sky laws of the
various states) and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter, articles of
incorporation or by-laws of the Company or the Subsidiary or any indenture, loan
or credit agreement, mortgage, lease or other agreement or instrument to which
it or the Subsidiary is a party or by which it or any of its subsidiaries or
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their respective property is bound, or violate or conflict with any laws, rules,
regulations, judgments, orders or decrees of any court, governmental agency or
body having jurisdiction over the Company, the Subsidiary or their respective
property, except those that would not have, singly or in the aggregate, a
material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiary, taken as a whole or otherwise affect consummation of the
transactions contemplated hereby (each, a "Material Adverse Effect").
(j) There are no legal or governmental proceedings pending or threatened to
which the Company or the Subsidiary is a party or to which any of their
respective property is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described; nor are there
any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(k) Neither the Company nor the Subsidiary has violated any foreign,
federal, state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees nor
any applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act of 1974 or the rules and regulations
promulgated thereunder, except for such violations which singly and in the
aggregate would not result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company and the
Subsidiary, taken as a whole.
(l) Each of the Company and the Subsidiary has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease and operate its respective properties and
to conduct its business except where failure to have such permits would not
have, singly or in the aggregate, a Material Adverse Effect; each of the Company
and the Subsidiary is in compliance with the terms and conditions of all such
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permits and no event has occurred which allows, or after notice or lapse of time
or both would allow, revocation or termination thereof or results or, after
notice or lapse of time or both, would result in any other impairment of the
rights of the holder of any such permit; such permits contain no restrictions
that are materially burdensome to the Company or the Subsidiary; except where
such failure to have, or comply with the terms or conditions of, such permits,
the occurrence of any such event or the presence of any such restriction would
not have, singly or in the aggregate, a Material Adverse Effect.
(m) There are no costs or liabilities known to the Company associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third
parties) which would have, singly or in the aggregate, a Material Adverse Effect
on the business, prospects, financial condition or results of operations of the
Company and the Subsidiary taken as a whole.
(n) This Agreement has been duly authorized, executed and delivered by the
Company.
(o) Except as otherwise set forth in the Prospectus or such as are not
material to the business, prospects, financial condition or results of operation
of the Company and its subsidiaries, taken as a whole, each of the Company and
the Subsidiary has good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions except liens for taxes not yet due and
payable and as described in the Registration Statement, to all property and
assets described in the Registration Statement as being owned by it. All leases
to which the Company or the Subsidiary is a party are valid and binding and no
default has occurred or is continuing thereunder, which might result in any
material adverse change in the business, prospects, financial condition or
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results of operation of the Company and the Subsidiary taken as a whole, and the
Company and the Subsidiary enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such exceptions as do
not materially interfere with the use made thereof by the Company or the
Subsidiary.
(p) Each of the Company and the Subsidiary maintains reasonably adequate
insurance or has established reasonably adequate reserves to cover usual
business and other risks.
(q) Ernst & Young LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(r) The financial statements, together with related schedules and notes
forming part of the Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(s) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(t) Except for the Registration Rights Agreement dated March 19, 1992
between the Company and certain banks and other institutions listed in Exhibit A
thereto (the "Existing Registration Rights Agreement"), there are no contracts,
agreements or understandings between the Company and any person granting such
15
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the Company
to include any such securities of the Company in a registration statement filed
under the Act including (without limitation) with the Shares registered pursuant
to the Registration Statement.
(u) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there has not occurred any
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and the Subsidiary, taken as a
whole, (ii) there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(v) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(w) In the case of any term sheet and prospectus subject to completion
provided by the Company to the Underwriters for use in connection with the
offering and sale of the Shares pursuant to Rule 434 under the Act, such term
sheet and prospectus together are not materially different from the prospectus
included in the Registration Statement at the time of effectiveness or an
effective post-effective amendment thereto and such term sheet sets forth all
information material to investors with respect to the offering that is not
disclosed in the prospectus subject to completion or the confirmation.
(x) Each of the Company and the Subsidiary maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
16
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and any appropriate action is taken
with respect to any differences.
(y) All material tax returns required to be filed by the Company and the
Subsidiary in any jurisdiction have been filed, other than those filings being
contested in good faith, and all material taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or the Subsidiary
have been paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(z) The Company has filed a registration statement pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
to register the Class A Common Stock, has filed an application to list the Class
A Common Stock on the New York Stock Exchange, and has received notification
that the listing has been approved, subject to notice of issuance.
7. Representations and Warranties of the Selling Stockholders. Each Selling
----------------------------------------------------------
Stockholder severally represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the registered and beneficial owner of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement (except
that if such Selling Stockholder is a trust, the beneficiaries of such trust in
such capacity are the beneficial owners of such Shares) and such Selling
Stockholder has, and on the Closing Date will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances, security
interests and claims whatsoever.
(b) Upon delivery of and payment for such Shares pursuant to this Agreement
and assuming the Underwriters are acquiring such Shares in good faith without
notice of any adverse claim, within the meaning of the Uniform Commercial Code
as in effect in the State of [New York] [Georgia] ("UCC"), good and clear title
17
to such Shares will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date will have, full
legal right, power and authority to enter into this Agreement and the Custody
Agreement between such Selling Stockholder and SunTrust Bank of Atlanta,
Georgia, as Custodian (a "Custody Agreement") and to sell, assign, transfer and
deliver such Shares in the manner provided herein and therein, and this
Agreement and such Custody Agreement have been duly authorized, executed and
delivered by such Selling Stockholder and each of this Agreement and such
Custody Agreement is a valid and binding agreement of such Selling Stockholder
enforceable in accordance with its terms, except (i) as may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and (ii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(d) The power of attorney signed by such Selling Stockholder appointing
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or either one of them, as his
attorney-in-fact to the extent set forth therein with regard to the transactions
contemplated hereby and by the Registration Statement and the Custody Agreement
has been duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding instrument of such Selling Stockholder
enforceable in accordance with its terms (except (i) as may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally, (ii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought, and
(iii) that the enforceability of any rights to indemnity or contribution may be
limited by federal or state securities laws or by public policy).
18
(e) Such Selling Stockholder has not taken, and will not take, directly or
indirectly, any action designed to, or which might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement, and other than as permitted by the
Act, the Selling Stockholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Shares.
(f) The execution, delivery and performance of this Agreement by such
Selling Stockholder, compliance by such Selling Stockholder with all the
provisions hereof and the consummation of the transactions contemplated hereby
will not require any consent, approval, authorization or other order of, or
qualification with, any court, regulatory body, administrative agency or other
governmental body (except as may be required under the Act, state securities
laws or Blue Sky laws) and will not conflict with or constitute a breach of any
of the terms or provisions of, or a default under, organizational documents of
such Selling Stockholder, if not an individual, or any indenture, loan or credit
agreement, mortgage, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder or property
of such Selling Stockholder is bound, or violate or conflict with any laws,
rules, regulations, judgments, orders or decrees of any court, governmental
agency or body having jurisdiction over such Selling Stockholder or property of
such Selling Stockholder.
(g) Such parts of the Registration Statement under the caption "Principal
and Selling Shareholders" which specifically relate to such Selling Stockholder
do not, and will not on the Closing Date (and any Option Closing Date), contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of circumstances under which they were made, not misleading.
(h) At any time during the period described in paragraph 5(d) hereof, if
there is any change in the information referred to in paragraph 7(g) above, such
19
Selling Stockholder will immediately notify you of such change.
8. Indemnification. The Company agrees to indemnify and hold harmless each
---------------
Underwriter, its directors, its officers and each person, if any, who controls
any Underwriter, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished in writing
to the Company by or on behalf of such Underwriter through you expressly for use
therein; provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and liabilities
and judgments purchased Shares, or any director or officer of or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
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 and supplemented) would have cured the defect giving rise to such
loss, claim, damage, liability or judgment.
(b) Each of the Selling Stockholders, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter, from and against any and all
losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
20
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with respect to claims, actions and
proceedings based on information relating to, or supplied by such Selling
Stockholder. Notwithstanding the foregoing, the aggregate liability of any
Selling Stockholder pursuant to the provisions of this paragraph (b) shall be
limited to an amount equal to the aggregate purchase price received by such
Selling Stockholder from the sale of such Selling Stockholder's
Shares hereunder; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages and
liabilities and judgments purchased Shares, or any director or officer of or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements 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 and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment.
(c) In case any proceeding (including governmental investigation) shall be
brought against any Underwriter or any director or officer of or any person
controlling such Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company or any of
the Selling Stockholders, such Underwriter shall promptly notify the Company or
such Selling Stockholders, as applicable, in writing and the Company or such
Selling Stockholders, if applicable, shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. Any Underwriter or any director or officer of
or person controlling such Underwriter shall have the right to employ separate
counsel in any such proceeding and participate in the defense thereof, but the
21
fees and expenses of such counsel shall be at the expense of such Underwriter,
director, officer or controlling person unless (i) the employment of such
counsel has been specifically authorized in writing by the Company or such
Selling Stockholders, if applicable, (ii) the Company or such Selling
Stockholders, if applicable, shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such proceeding (including any
impleaded parties) include both such Underwriter, director, officer or
controlling person and the Company or such Selling Stockholders, as the case may
be, and such Underwriter, director, officer or controlling person shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company or the Selling Stockholders, as the case may be, (in which case the
Company or the Selling Stockholders, as applicable, shall not have the right to
assume the defense of such proceeding on behalf of such Underwriter, director,
officer or controlling person). In any such case described in the immediately
preceding sentence, the Company and, if applicable, such Selling Stockholders
shall not, in connection with any one such proceeding or separate but
substantially similar or related proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters, directors, officers and controlling persons.
In any case where any Underwriter, or any director or officer of, or person
controlling such Underwriter has the right to employ separate counsel at the
Company's or any Selling Stockholder's expense, such counsel shall be designated
in writing by ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and all fees
and expenses of such counsel shall be reimbursed as they are incurred. The
Company or, if applicable, any such Selling Stockholder shall not be liable for
any settlement of any such action effected without the written consent of the
Company or such Selling Stockholder, as the case may be, but if settled with the
written consent of the Company or such Selling Stockholder, the Company or, if
applicable, such Selling Stockholder agrees to indemnify and hold harmless any
Underwriter and any director, officer and controlling person of such Underwriter
from and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and an
22
indemnified party shall have requested the indemnifying party to reimburse the
indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall also be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than ten business days after the receipt by such indemnifying party of
the aforesaid request for reimbursement and (ii) such indemnifying party shall
have failed to reimburse the indemnified party in accordance with such request
for reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company and each Selling Stockholder,
its directors, its officers and any person controlling the Selling Stockholder
to the same extent as the foregoing indemnity from the Sellers to each
Underwriter but only with reference to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any preliminary
prospectus. In case any proceeding shall be brought against (i) the Company, any
such director, officer or any person controlling the Company or (ii) any Selling
Stockholder, any such director, officer or any person controlling such Selling
Stockholder based on the Registration Statement, the Prospectus or any
preliminary prospectus and in respect of which indemnity may be sought against
any Underwriter, the Underwriter shall have the rights and duties given to the
Sellers (except that if any Seller shall have assumed the defense thereof, such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of such
23
counsel shall be at the expense of such Underwriter), and the Company, any such
directors and officers and any person controlling the Company and each Selling
Stockholder, its directors, its officers and any person controlling the Selling
Stockholder shall have the rights and duties given to such Underwriter by
Section 8(c) hereof (except that if the Company, any Selling Stockholder, any
such directors or officers or any such controlling person shall have the right
to employ separate counsel at such Underwriter's expense pursuant to Section
8(c), such counsel shall be designated by the Company or, if none of the
Company, its directors, officers or persons controlling the Company are parties
to such proceeding, such Selling Stockholder, as applicable).
(e) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand 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 Sellers and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Sellers and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Sellers 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 to state a material
24
fact relates to information supplied by the Company, the Selling Stockholders or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 8(e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to Section 8(e) are several in proportion to the respective number of
Shares purchased by each of the Underwriters hereunder and not joint.
(g) The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(h) In this Agreement, references to a person "controlling" another person
or a "controlling person" shall be deemed to be a reference to a person who
controls that other person within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act.
25
9. Conditions of Underwriters' Obligations. The several obligations of the
---------------------------------------
Underwriters to purchase the Firm Shares under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective not later than
5:00 P.M.(and in the case of a Registration Statement filed under Rule 462(b) of
the Act, not later than 10:00 p.m.), New York City time, on the date of this
Agreement or at such later date and time as you may approve in writing, and at
the Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or contemplated by the Commission.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have occurred any
change or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and the Subsidiary, taken as a whole, (ii) there shall not have been
any change or any development involving a prospective change in the capital
stock or in the long-term debt of the Company or the Subsidiary and (iii)
neither the Company nor the Subsidiary shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause (i), (ii) or (iii), in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
(d) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in their
respective capacities as the Chief Executive Officer and Chief Financial Officer
of the Company, confirming the matters set forth in paragraphs (a), (b) and
(c)(i) and (ii) of this Section 8.
26
(e) All the representations and warranties of the Selling Stockholders
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received a certificate to such effect, dated the Closing Date, from each
Selling Stockholder.
(f) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, counsel for the Company, substantially to the effect that:
(i) Each of the Company and the Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority required
to carry on its business as it is currently being conducted and as described in
the Prospectus and to own, lease and operate its properties;
(ii) Each of the Company and the Subsidiary is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(iii) all of the outstanding shares of capital stock of the Subsidiary
have been duly and validly authorized and issued and are fully paid and non-
assessable, and to such counsel's knowledge, based solely on a review of stock
records and minute books, are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any nature;
(iv) all the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not subject
to any preemptive or similar rights arising by operation of law, under the
articles of
27
incorporation or by-laws of the Company or to the best of such counsel's
knowledge under any agreement to which the Company is a party;
(v) the Shares to be issued and sold by the Company hereunder have been
duly authorized, and when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will have been validly issued
and will be fully paid and non-assessable, and the issuance of such Shares is
not subject to any preemptive or similar rights arising by operation of law,
under the articles of incorporation or by-laws of the Company or to the best of
such counsel's knowledge under any agreement to which the Company is a party;
(vi) The Registration Statement has been declared effective under the Act
as of ___ [am/pm] on ___, 1997, any required filing of the Prospectus pursuant
to Rule 424(b) has been made in the manner and within the time period required
by Rule 424(b), and such counsel has been advised by the Commission that no stop
order suspending the effectiveness of the Registration Statement has been
issued, and to the best of such counsel's knowledge and information no
proceedings for that purpose have been instituted or are pending before or
threatened by the Commission;
(vii) the statements under the captions "Description of Certain
Indebtedness", "Shares Eligible for Future Sale" and "Description of Capital
Stock" in the Prospectus and Item 14 of Part II of the Registration Statement
insofar as such statements constitute a summary of legal matters, documents or
legal proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings;
(viii) neither the Company nor the Subsidiary is in violation of its
respective charter or articles of incorporation or by-laws and, to the best of
such counsel's knowledge after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan or credit agreement,
mortgage, lease or other agreement or instrument which, based upon a certificate
of two officers of the Company, is material to the Company and the Subsidiary
taken as a whole, or otherwise is described or referred to in the Registration
28
Statement or the Prospectus or filed as an exhibit to the Registration
Statement, to which the Company or the Subsidiary is a party or by which it or
the Subsidiary or their respective property is bound (collectively, "Material
Contracts");
(ix) the execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of or qualification with, any
federal, Georgia or Delaware court or governmental body or agency (except such
as may be required under the securities or Blue Sky laws of the various states)
and will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter, articles of incorporation, or
by-laws of the Company or the Subsidiary, or any Material Contract or violate or
conflict with any laws, rules or regulations that such counsel knows to be
applicable to the transactions contemplated by the Agreement, or any judgments,
orders or decrees known to such counsel of any court, or any governmental agency
or body having jurisdiction over the Company or the Subsidiary or their
respective property;
(x) after due inquiry, which does not include any formal docket searches
other than of federal and state courts in Georgia and Delaware, such counsel
does not know of any legal or governmental proceeding pending or
threatened to which the Company or the Subsidiary is a party or to
which any of their respective property is subject that is required to be
described in the Registration Statement or the Prospectus and is not so
described, or of any statute, regulation, contract or other document which is
required to be described in the Registration Statement or the Prospectus or is
required to be filed as an exhibit to the Registration Statement that is not
described or filed as required;
(xi) the Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
29
(xii) to the best of such counsel's knowledge after due inquiry, except
for the Existing Registration Rights Agreement, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the Company
to include any such securities of the Company in a registration statement filed
under the Act including (without limitation) with the Shares registered pursuant
to the Registration Statement.
(xiii) (A) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements and other
financial and statistical data and Schedule II included therein as to which no
opinion need be expressed) comply as to form in all material respects with the
Act, (B) such counsel has no reason to believe that (except for the financial
statements and other financial and statistical data and Schedule II as to which
such counsel need not express any belief) at the time the Registration Statement
became effective and on the date of this Agreement, the Registration Statement
and the prospectus included therein contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) such counsel
has no reason to believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and Schedule II and other
financial and statistical data, as aforesaid) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and
(xiv) this Agreement has been duly authorized, executed and delivered by
the Company.
In giving such opinion with respect to the matters covered by clause (xiii)
such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
30
contents thereof, but are without independent check or verification except as
specified.
The opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP described in paragraph (f) above
shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of King and
Spalding, counsel for The Bank of Nova Scotia, satisfactory to the Underwriters,
substantially to the effect that:
(i) the execution, delivery and performance of this Agreement by The Bank
of Nova Scotia, compliance by The Bank of Nova Scotia with all the provisions
hereof and the consummation of the transactions contemplated hereby by The Bank
of Nova Scotia will not require any consent, approval, authorization or other
order of or qualification with, any federal or Georgia court or governmental
body or agency, or any court or governmental body or agency of Nova Scotia,
Canada (except such as may be required under the securities or Blue Sky laws of
the various states) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under the organizational documents of
The Bank of Nova Scotia or any indenture, loan or credit agreement, mortgage,
lease or other agreement or other instrument which, based on a certificate of
two officers of The Bank of Nova Scotia, are material to The Bank of Nova Scotia
and to which The Bank of Nova Scotia is a party or by which The Bank of Nova
Scotia or its properties are bound, or violate or conflict with any laws, rules
or regulations that such counsel knows to be applicable to the transactions
contemplated by this Agreement, or any judgments, orders or decrees known to
such counsel of any court, or any governmental agency or body having
jurisdiction over The Bank of Nova Scotia or its property;
(ii) this Agreement has been duly authorized, executed and delivered by
The Bank of Nova Scotia;
(iii) the Custody Agreement to which The Bank of Nova Scotia is a party
has been duly authorized, executed and delivered by The Bank of Nova Scotia and
is a valid and binding agreement of The Bank of Nova Scotia enforceable in
31
accordance with its terms (except (i) as may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
(ii) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought);
(iv) upon transfer of the Shares by The Bank of Nova Scotia to the
Underwriters in accordance with this Agreement and assuming the Underwriters are
acquiring such Shares in good faith without notice of any adverse claim, within
the meaning of the UCC, the Underwriters will acquire such Shares free of all
adverse claims (within the meaning of the UCC). "Transfer" of the Shares to the
Underwriters will occur upon the making by DTC of appropriate entries
transferring the Shares on its books and records to the account of the
Underwriters; and
(v) the power of attorney signed by The Bank of Nova Scotia appointing
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or either of them, as such Selling
Stockholder's attorney-in-fact to the extent set forth therein with regard to
the transactions contemplated hereby and by the Registration Statement has been
duly authorized, executed and delivered by or on behalf of The Bank of Nova
Scotia and is a valid and binding instrument of The Bank of Nova Scotia
enforceable in accordance with its terms (except (i) as may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally, (ii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought, and
(iii) that the enforceability of any rights to indemnity or contribution may be
limited by federal or state securities laws or by public policy).
The opinion of King & Spalding described in paragraph (g) above shall be
rendered to you at the request of The Bank of Nova Scotia and shall so state
therein.
32
(h) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of [ ],
special Canadian counsel for The Bank of Nova Scotia, satisfactory to the
Underwriters, substantially to the effect that:
(i) The Bank of Nova Scotia has full legal right, power and authority, and
any approval required by law (other than any approval imposed by the applicable
state securities and Blue Sky laws) to sell, assign, transfer and deliver the
Shares to be sold by it in the manner provided in this Agreement and such
Custody Agreement.
The opinion of such counsel described in paragraph (h) above shall be
rendered to you at the request of The Bank of Nova Scotia and shall so state
therein;
(j) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Esher"),
satisfactory to the Underwriters, substantially to the effect that:
(i) the execution, delivery and performance of this Agreement by Esher,
compliance by Esher with all the provisions hereof and the consummation of the
transactions contemplated hereby by Esher will not require any consent,
approval, authorization or other order of or qualification with, any federal,
Georgia or Delaware court (based solely on formal docket searches of federal and
state courts in Georgia and Delaware on May __, 1997 and a certificate of Esher)
or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under any
indenture, loan or credit agreement, mortgage, lease or other agreement
or other instrument to which (based on a certificate of Esher)
Esher is a party or by which (based on such certificate of Esher) Esher or his
properties are bound, or violate or conflict with any laws, rules or regulations
that such counsel knows to be applicable to the transactions contemplated by the
Agreement, or any judgments, orders or decrees known to such counsel of any
33
court, or any governmental agency or body having jurisdiction over Esher or his
property;
(ii) this Agreement has been duly executed and delivered by Esher;
(iii) the Custody Agreement to which Esher is a party has been duly
executed and delivered by Esher, and is a valid and binding agreement of Esher
enforceable in accordance with its terms (except (i) as may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and (ii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought);
(iv) Esher has full legal right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by him in the manner provided in this
Agreement and such Custody Agreement;
(v) upon transfer of the Shares by Esher to the Underwriters in
accordance with this Agreement and assuming the Underwriters are acquiring such
Shares in good faith without notice of any adverse claim, within the meaning of
the UCC, the Underwriters will acquire such Shares free of all adverse claims
(within the meaning of the UCC). "Transfer" of the Shares to the Underwriters
will occur upon the making by DTC of appropriate entries transferring the
Shares on its books and records to the account of the Underwriters; and
(vi) the power of attorney signed by Esher appointing ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or either of them, as Esher's attorney-in-fact to the
extent set forth therein with regard to the transactions contemplated hereby and
by the Registration Statement has been duly executed and delivered by Esher and
is a valid and binding instrument of Esher enforceable in accordance with its
terms (except (i) as may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally, (ii) that the remedy of
34
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought, and (iii) that the enforceability of any
rights to indemnity or contribution may be limited by federal or state
securities laws or by public policy).
In renedering the opinion set forth in paragraph (j)(i) above, such counsel
may rely on the certificate of Esher referred to therein (in a form and
substance satisfcatory to the Underwriters), provided that a copy of such
certificate is delivered to you at Closing. The opinion of counsel for Esher
described in paragraph (j) above shall be rendered to you at the request of
Esher and shall so state therein.
(k) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the ▇▇▇▇▇ ▇. ▇▇▇▇▇ Children's Trust
(the "Esher Trust"), satisfactory to the Underwriters, substantially to the
effect that:
(i) the execution, delivery and performance of this Agreement by the Esher
Trust, compliance by the Esher Trust with all the provisions hereof and the
consummation of the transactions contemplated hereby by the Esher Trust will not
require any consent, approval, authorization or other order of or qualification
with, any federal, Georgia, Delaware or [jurisdiction of organization] court
(based solely on formal docket searches of federal and state courts in Georgia,
Delaware and [jurisdiction of organization] on May __, 1997 and a certificate of
the Esher Trust) or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states) and will not
conflict with or constitute a breach of any of the terms or provisions of, or a
default under any indenture, loan or credit agreement, mortgage, lease or other
agreement or other instrument to which (based on a certificate of the Esher
Trust) the Esher Trust is a party or by which (based on such certificate of the
Esher Trust) the Esher Trust or its properties are bound, or violate or conflict
with any laws, rules or regulations that such counsel knows to be applicable to
the transactions contemplated by the Agreement, or any judgments, orders or
decrees
35
known to such counsel of any court, or any governmental agency or body
having jurisdiction over the Esher Trust or its property;
(ii) this Agreement has been duly authorized, executed and delivered by
the Esher Trust;
(iii) the Custody Agreement to which the Esher Trust is a party has been
duly authorized, executed and delivered by the Esher Trust, and is a valid and
binding agreement of the Esher Trust enforceable in accordance with its terms
(except (i) as may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought);
(iv) the Esher Trust has full legal right, power and authority to sell,
assign, transfer and deliver the Shares to be sold by it in the manner provided
in this Agreement and such Custody Agreement;
(v) upon transfer of the Shares by the Esher Trust to the Underwriters in
accordance with this Agreement and assuming the Underwriters are acquiring such
Shares in good faith without notice of any adverse claim, within the meaning of
the UCC, the Underwriters will acquire such Shares free of all adverse claims
(within the meaning of the UCC). "Transfer" of the Shares to the Underwriters
will occur upon the making by DTC of appropriate entries transferring the Shares
on its books and records to the account of the Underwriters; and
(vi) the power of attorney signed by the Esher Trust appointing ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or either of them, as its attorney-in-fact to
the extent set forth therein with regard to the transactions contemplated hereby
and by the Registration Statement has been duly authorized, executed and
delivered by or on behalf of the Esher Trust and is a valid and binding
instrument of the Esher Trust enforceable in accordance with its terms (except
(i) as may be limited by bankruptcy, insolvency, fraudulent transfer,
36
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights generally, (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, and (iii) that the enforceability of any
rights to indemnity or contribution may be limited by federal or state
securities laws or by public policy).
In renedering the opinion set forth in paragraph (k)(i) above, such counsel
may rely on the certificate of the Esher Trust referred to therein (in a form
and substance satisfcatory to the Underwriters), provided that a copy of such
certificate is delivered to you at Closing. The opinion of counsel for the Esher
Trust described in paragraph (k) above shall be rendered to you at the request
of the Esher Trust and shall so state therein.
(l) The Representatives shall have received an opinion, dated the Closing
Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
in form and substance reasonably satisfactory to the Representatives.
(m) You shall have received on each of the date hereof and the Closing Date
a letter on and as of the date hereof or Closing Date as the case may be, in
form and substance satisfactory to you, from Ernst & Young LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(n) The merger of Pameco Holdings, Inc. and the Delaware corporation
previously known as Pameco Corporation into the Company, and the associated
recapitalization of the Company as described in the Prospectus, shall have been
consummated on terms and conditions reasonably satisfactory to the
Representatives.
(o) The Company and the Selling Stockholders shall not have failed at or
prior to the Closing D ate to perform or comply with any of the agreements
herein contained
37
and required to be performed or complied with by the Company at or prior to the
Closing Date.
(p) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(q) The Shares shall have been duly listed, subject to notice of issuance,
on the New York Stock Exchange.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
10. Effective Date of Agreement and Termination. This Agreement shall become
-------------------------------------------
effective upon the execution and delivery of this Agreement by the parties
hereto.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Sellers if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or development
involving a prospective material adverse change in the condition, financial or
otherwise, of the Company and the Subsidiary, taken as a whole, or the earnings,
affairs, or business prospects of the Company and the Subsidiary, taken as a
whole, whether or not arising in the ordinary course of business, which would,
in your judgment, make it impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
38
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market System, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company or the Subsidiary, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it or they have agreed to
purchase hereunder on such date and the aggregate number of Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase is
not more than one-tenth of the total number of Shares to be purchased on such
date by all Underwriters, each non-defaulting Underwriter shall be obligated
severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase, or in
such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Firm Shares or
Additional Shares, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 10
by an amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares, with respect to
which such default occurs is more than one-tenth of the aggregate number of
39
Shares to be purchased on such date by all Underwriters and arrangements
satisfactory to you and the applicable Sellers for purchase of such Shares are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the
applicable Sellers. In any such case which does not result in termination of
this Agreement, either you or the Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
11. Agreements of the Selling Stockholders. Each Selling Stockholder
--------------------------------------
severally agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes with respect to the
Shares to be sold by such Selling Stockholder;
(b) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of such Selling Stockholder's obligations
under this Agreement including the fees, disbursements and expenses of the
Selling Stockholder's counsel; and
(c) To do and perform all things to be done and performed by the Selling
Stockholder under this Agreement prior to the Closing Date and to the
40
extent within its reasonable control satisfy all conditions precedent to the
delivery of the Shares pursuant to this Agreement.
12. Miscellaneous. Notices given pursuant to any provision of this Agreement
-------------
shall be addressed as follows: (a) if to the Company, to Pameco Corporation,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer,
(b) if to the Selling Stockholders, to Messrs. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ c/o Pameco Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and (c) if to any Underwriter or to you, to you c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Selling Stockholders, the Company, its
officers and directors and of the several Underwriters set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, any officer or director or person controlling any Underwriter
or by or on behalf of the Sellers, the officers or directors of the Company or
any controlling person of the Sellers, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Sellers, the Underwriters and
their respective directors, officers and controlling persons referred to herein
and their respective successors and assigns, all as and to the extent provided
41
in this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The term "successors and assigns" shall not
include a purchaser of any of the Shares from any of the several Underwriters
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
42
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
PAMECO CORPORATION
By_________________________
Title:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II HERETO
By_________________________
Attorney-in-fact
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. INCORPORATED
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By__________________________
43
SCHEDULE I
----------
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Incorporated
---------
Total 3,578,644
44
SCHEDULE II
-----------
Selling Stockholders
--------------------
Number of Firm
Name Shares Being Sold
---- -----------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ 353,728
▇▇▇▇▇ ▇. ▇▇▇▇▇ Children's Trust 149,375
The Bank of Nova Scotia 75,541
-------
Total 578,644
45
ANNEX I
-------
Required Lock-ups
-----------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇ van Ee
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TCR International Partners LP
Terbem Limited
Tinvest Limited
Mitvest Limited
Bobst Investment Corp
K Investment Partners ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Charitable Partners
TG Partners
46