Common Stock, Par Value $0.10 Per
Share
Morgan Stanley
& Co. Incorporated
Friedman, Billings, Ramsey & Co., Inc.
Needham & Company, LLC
Kaufman Bros., L.P.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Mastec, Inc., a
Florida corporation (the “ Company ”), proposes
to issue and sell to the several Underwriters named in
Schedule I hereto (the “ Underwriters ”)
___shares of its Common Stock, par value $0.10 per share (the
“ Firm Shares ”). The Company also proposes to
issue and sell to the several Underwriters not more than an
additional ___shares of its Common Stock, par value $0.10 per share
(the “ Additional Shares ”) if and to the extent
that you, as Managers of the offering, shall have determined to
exercise the right to purchase such shares of common stock granted
to the Underwriters in Section 2 hereof. The Firm Shares and
the Additional Shares are hereinafter collectively referred to as
the “ Shares .” The shares of Common Stock, par
value $0.10 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter
referred to as the “ Common Stock .”
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information
(if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the “ Securities
Act ”), is hereinafter referred to as the "
Registration Statement ”; the prospectus in the form
first used to confirm sales of Shares (or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Prospectus .”
If the Company has filed an abbreviated registration statement to
register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the “ Rule 462 Registration
Statement ”), then any reference herein to the term
“ Registration Statement ” shall be deemed to
include such Rule 462 Registration Statement.
For purposes of
this Agreement, “ free writing prospectus ” has
the meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus ” means the preliminary
prospectus together with the free writing prospectuses, if any,
each identified in Schedule II hereto, and “ broadly
available road show ” means a “bona fide electronic
road show” as defined in Rule (433(h)(5) under the Securities
Act that has been made available without restriction to any person.
As used herein, the terms “Registration Statement,”
“preliminary prospectus,” “Time of Sale
Prospectus” and Prospectus shall include the documents, if
any, incorporated by reference therein. The terms "
supplement ,” “ amendment ,” and
“ amend ” as used herein with respect
to
the Time of
Sale Prospectus or any free writing prospectus shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), that are incorporated by
reference therein.
1.
Representations and Warranties . The Company represents and
warrants to and agrees with each of the Underwriters
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) The Registration Statement, when it became effective, did
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 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 Securities Act and the applicable rules and regulations of
the Commission thereunder, (iii) the Time of Sale Prospectus
does not, and at the time of each sale of the Shares in connection
with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or
supplemented by the Company, 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,
(iv) each broadly available road show, if any, when considered
together with the Time of Sale Prospectus, does 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 and
(v) 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 do not
apply to statements or omissions in the Registration Statement, the
Time of Sale Prospectus 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.
(c)
The Company is not an “ineligible issuer” in connection
with the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule II
hereto, and electronic road shows, if any, furnished to you before
first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
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(d)
The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(e)
Each “significant subsidiary” as such term is defined
in Section 1.02 of Regulation S-X promulgated by the
Commission (each a “ Significant Subsidiary ”)
of the Company is listed on Schedule III hereto. Each
Significant Subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business
as described in the Time of Sale Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly by
the Company, free and clear of all liens, encumbrances, equities or
claims.
(f)
This Agreement has been duly authorized, executed and delivered by
the Company.
(g)
The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus.
(h)
The shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(i)
The Shares have been duly authorized and, when issued and delivered
in accordance with the terms of 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.
(j)
The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and
sale of the Shares.
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(k)
There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Time of Sale Prospectus.
(l)
There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of
its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale
Prospectus and proceedings that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are
not so described and there are no 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. The Time of Sale Prospectus contains in all material
respects the same description of the foregoing matters contained in
the Prospectus.
(m)
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 Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(n)
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, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(o)
Except as disclosed in the Registration Statement, the Company and
its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(p)
Except as disclosed in the Registration Statement, there are no
costs or liabilities 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, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
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(q)
Except as disclosed in the Registration Statement, 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 Securities Act with respect
to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(r)
Subsequent to the respective dates as of which information is given
in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (i) the Company and its subsidiaries have
not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction;
(ii) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary
and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries, except in each case as
described in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, respectively.
(s)
The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to
all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Time of Sale Prospectus or such as do not
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in
the Time of Sale Prospectus.
(t)
The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the
business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(u)
No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in the Time of Sale
Prospectus, or, to the knowledge of the Company, is imminent; and
the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(v)
The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses
in which they are engaged; neither the Company nor any of
its
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subsidiaries
has been refused any insurance coverage sought or applied for, and
neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole, except as
described in the Time of Sale Prospectus.
(w)
The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state
or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Time of Sale
Prospectus.
(x)
The Company and each of its subsidiaries maintain 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
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as described in the Time of Sale Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (i)
no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (ii) no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
2.
Agreements to Sell and Purchase . The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and
not jointly, to purchase from the Company the respective numbers of
Firm Shares set forth in Schedule I hereto opposite its name
at $___a share (the “ Purchase Price
”).
On the basis of
the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to sell to
the Underwriters the Additional Shares, and the Underwriters shall
have the right to purchase, severally and not jointly, up to ___
Additional Shares at the Purchase Price. You may exercise this
right on behalf of the Underwriters in whole or from time to time
in part by giving written notice not later than 30 days after
the date of this Agreement. Any exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and
the date on which such shares are to be purchased. Each purchase
date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm
Shares nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm
Shares. On each day, if any, that Additional Shares are to be
purchased (an “ Option
6
Closing
Date ”), each
Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be
purchased on such Option Closing Date as the number of Firm Shares
set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
3.
Terms of Public Offering . The Company is advised by you
that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your
judgment is advisable. The Company is further advised by you that
the Shares are to be offered to the public initially at $ ___a
share (the “ Public Offering Price ”) and to
certain dealers selected by you at a price that represents a
concession not in excess of $ ___a share under the Public Offering
Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $___ a share, to any
Underwriter or to certain other dealers.
4.
Payment and Delivery . Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available
in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on ___, 2006, or at such other time on the same
or such other date, not later than ___, 2006, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the “ Closing Date
.”
Payment for any
Additional Shares shall be made to the Company in Federal or other
funds immediately available in New York City against delivery of
such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2
or at such other time on the same or on such other date, in any
event not later than ___, 2006, as shall be designated in writing
by you.
The Firm Shares
and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable
Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or
an Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price
therefor.
5. Conditions
to the Underwriters’ Obligations.
The several
obligations of the Underwriters are subject to the following
conditions:
(a)
Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i)
there shall not have occurred any downgrading, nor shall any notice
have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any
“nationally
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recognized
statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
and
(ii)
there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus that, in your judgment, is material
and adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in
the Time of Sale Prospectus.
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