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Exhibit 99.2
MAVERICK TUBE CORPORATION
2,000,000 Shares
Common Stock
UNDERWRITING AGREEMENT
March 12, 2002
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Dear Ladies and Gentlemen:
Maverick Tube Corporation, a Delaware corporation (the "Company"),
hereby confirms its agreement with Xxxxxxx Xxxxx & Associates, Inc. (the
"Underwriter") as set forth below:
1. Shares. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the Underwriter 2,000,000 shares (the
"Shares") of the Company's common stock, par value $.01 per share, (with
associated preferred stock purchase rights) (the "Common Stock"). The Shares are
more fully described in the Registration Statement referred to below.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-61292), and one amendment thereto, for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of up to
$250,000,000 of securities, which registration statement, as so amended
(including post-effective amendments), has been declared effective by
the Commission and copies of which have heretofore been delivered or
made available to the Underwriter. The registration statement, as
amended at the time it became effective, including the exhibits and
information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A or 434(d) under the
Securities Act, including the Prospectus (hereinafter defined), is
hereinafter referred to as the "Registration Statement." If the Company
has filed, or is required pursuant to the terms hereof to file, a
registration statement pursuant to Rule 462(b) under the Securities Act
registering additional shares of Common Stock (a "Rule 462(b)
Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462(b) Registration Statement. Other than a Rule
462(b) Registration Statement, which becomes effective upon filing, no
other document with respect to the Registration Statement has
heretofore been filed with the Commission. No stop order suspending the
effectiveness of either the Registration Statement or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission. The Company, if required by the rules and
regulations of the Commission (together, the "Rules and Regulations"),
proposes to file the Prospectus (hereinafter defined) with the
Commission pursuant to Rule 424(b) of the Rules and Regulations. The
Prospectus, in the form in which it is to be filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, or, if the
Prospectus is not to be filed with the Commission pursuant to Rule
424(b), the Prospectus in the form included as part of the Registration
Statement at the time the Registration Statement became effective, is
hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the
Underwriter by the Company for use in connection with the offering and
sale of the Shares which differs from the Prospectus (whether or not
such revised prospectus or prospectus supplement is required to be
filed by the Company pursuant to Rule 424(b) of the Rules and
Regulations), the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after
the time it is first provided to the Underwriter for such use. Any
preliminary prospectus or prospectus subject to completion included in
the Registration Statement or filed with the Commission pursuant to
Rule 424 under the Securities Act is hereafter called a "Preliminary
Prospectus." Any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") on or before the effective
date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include (i) the filing
of any document under the Exchange Act after the effective date of the
Registration Statement, as of the date of such Preliminary Prospectus
or as of the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so filed.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when
any supplement to or amendment of the Prospectus is filed with the
Commission, when any document filed under the Exchange Act was or is
filed and at the Closing Date, if any (as hereinafter defined), the
Registration Statement and the Prospectus and any amendments thereof
and supplements thereto, including all documents incorporated or deemed
to be incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied or will
comply in all material respects with the applicable provisions of the
Securities Act and the Rules and Regulations and did not and will not
contain an untrue statement of a material fact and did not and will not
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus or any related Preliminary Prospectus in light of the
circumstances under which they were made, not misleading. When any
related Preliminary Prospectus was first filed with the Commission
(whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule
424(a) of the Rules and Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such
Preliminary Prospectus and any amendments thereof and supplements
thereto complied in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations and the
Exchange Act and the respective rules and regulations thereunder and
did not contain an untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and
warranty is made in this subsection (b), however, with respect to any
information contained in or omitted from the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of the Underwriter specifically for use therein. If Rule 434
is used, the Company will comply with the requirements of Rule 434.
(c) The Company and all corporations, limited liability
companies, partnerships and joint ventures (the "Subsidiaries") in
which the Company has a direct or indirect majority equity interest and
which would be required to be listed on Exhibit 21 to an Annual Report
on Form 10-K of the Company if such report were to be filed with the
Commission at the time of the execution and delivery of this Agreement
have been duly organized and are validly existing as entities in good
standing under the laws of their respective jurisdictions of
organization and are duly qualified to transact business as foreign
entities and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification, except where the failure to do so or qualify or be in
good standing would not have a material adverse effect on the business,
financial condition or results of operations of the Company and the
Subsidiaries, taken as a whole (a "Material Adverse Effect").
(d) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. No holders of outstanding
shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Shares, and no
holder of securities of the Company has any right which has not been
fully exercised or waived to require the Company to register the offer
or sale of any securities owned by such holder under the Securities Act
in the public offering contemplated by this Agreement. The Shares have
been duly authorized and at the Closing Date, after payment therefor in
accordance herewith, will be validly issued, fully paid and
nonassessable.
(e) The issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and such shares are owned of record and
beneficially by the Company, or another Subsidiary, free and clear of
any security interests, liens, encumbrances, equities or claims.
(f) None of the Subsidiaries, other than Maverick Tube
International, Inc., Maverick Tube, L.P., Maverick Investment
Corporation, Maverick Tube (Canada) Inc., Maverick Exchangeco Ltd.,
Prudential Steel Ltd., Prudential Industries, Inc., Prudential Steel,
Inc., is a "significant subsidiary" as such term is defined in Rule 405
under the Securities Act.
(g) The Shares are listed on the New York Stock Exchange (the
"NYSE"), or will be approved for listing, subject to notice of
issuance.
(h) Except as described or specifically referred to in the
Prospectus and except for options granted under the Company's employee
stock option, stock bonus or other stock plans or arrangements in
effect as of the date hereof and described or incorporated by reference
in the Prospectus (the "Company Stock Plans"), there are not
outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any Subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any Subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(i) The historical consolidated financial statements and
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus fairly present the financial position of the Company and its
consolidated subsidiaries and the results of operations and the cash
flows of the Company and its consolidated subsidiaries at the
respective dates and for the respective periods to which they apply.
Such financial statements and schedules have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved (except as otherwise noted
therein). No other financial statements or schedules are required to be
included in the Registration Statement.
(j) Ernst & Young, LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their reports with respect to the audited consolidated
financial statements and schedules included or incorporated by
reference in the Registration Statement and the Prospectus, are
independent public accountants within the meaning of the Securities
Act, the Exchange Act and the related published rules and regulations
thereunder.
(k) The Company has full corporate power to enter into this
Agreement and to carry out all of the terms and provisions hereof to be
carried out by it. The execution and delivery of this Agreement have
been duly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and is the valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as rights to indemnity and contribution may be
limited under applicable law and except as limited by bankruptcy,
insolvency or other laws of general application relating to or
affecting creditors' rights generally and general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(l) The compliance by the Company with the provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained, such as may be required under state
securities or blue sky laws and such as may be required (and shall be
obtained as provided in this Agreement) under the Securities Act, or
(ii) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of their respective
properties are bound, or the charter documents or by-laws of the
Company or any of its Subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
Subsidiaries except for such conflicts, defaults, violations, creations
or impositions that would not affect the consummation of the Agreement,
the issuance of the Shares or have a Material Adverse Effect.
(m) Subsequent to the respective dates as of which information
is given or incorporated by reference in the Registration Statement and
the Prospectus, there has not been (i) any material adverse change, or
any development which, in the Company's reasonable judgment, is likely
to cause a material adverse change, in the business, properties,
management, net worth, or assets described or referred to in the
Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company and its
Subsidiaries taken as a whole, (ii) any transaction which is material
to the Company or its Subsidiaries, except transactions in the ordinary
course of business, (iii) any obligation, direct or contingent, which
is material to the Company and its Subsidiaries taken as a whole,
incurred by the Company or its Subsidiaries, except obligations
incurred in the ordinary course of business, (iv) any change in the
capital stock or out-standing indebtedness of the Company or its
Subsidiaries or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company. Neither the Company
nor the Subsidiaries has any material contingent obligation that is not
disclosed or incorporated by reference in the Registration Statement.
(n) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Shares or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(o) Subsequent to the respective dates as of which information
is given, or incorporated by reference, in the Registration Statement
and the Prospectus: (1) the Company and its subsidiaries, prior to the
Closing Date, have not entered into any transaction not in the ordinary
course of business that is material to the Company and its subsidiaries
taken as a whole; (2) 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; and (3)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated subsidiaries
or any default under the terms of any class of capital stock of the
Company or any outstanding debt obligations, except in each case as
described in or contemplated by the Prospectus.
(p) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act"), and is not subject to regulation as an investment company under
the 1940 Act. This transaction will not cause the Company to become an
investment company subject to registration under the 1940 Act.
(q) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Shares, will not distribute any offering material in connection with
the offering and sale of the Shares other than the Registration
Statement or any amendment thereto, or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the
Securities Act.
(r) Each certificate signed by any officer of the Company and
delivered to the Underwriter pursuant to this Agreement or in
connection with the payment of the purchase price and delivery of the
certificates for the Shares shall be deemed to be a representation and
warranty by the Company to the Underwriter as to the matters covered
thereby.
(s) No labor dispute with the employees of the Company or any
of the Subsidiaries exists or is threatened or imminent that could
result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(t) The Company and the Subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by
them in connection with their respective businesses, and neither the
Company nor any such Subsidiary has received any notice of infringement
of or conflict with asserted rights of any third party with respect to
any of the foregoing which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus.
(u) The Company and each of the 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 such
Subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such Subsidiary 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 cause a Material Adverse Effect,
except as described in or contemplated by the Prospectus.
(v) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock, from repaying to
the Company any loans or advances to such Subsidiary from the Company
or from transferring any of such Subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in
or contemplated by the Prospectus.
(w) The Company and the 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 such Subsidiary 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 result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus.
(x) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as described in or
contemplated by the Prospectus.
(y) Neither the Company nor any of the Subsidiaries is in
violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and the
Subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct their
respective businesses, and the Company and each such Subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, result in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus.
(z) There are no holders of securities of the Company, who, by
reason of the filing of the Registration Statement or the transactions
contemplated hereby, have the right (and have not waived such right) to
request the Company to register under the Securities Act, or to include
in the Registration Statement, securities held by them.
(aa) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(bb) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries or any of their
respective properties is bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company and its subsidiaries.
(cc) The Company and each of the Subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by
the Company or such Subsidiary, and any real property and buildings
held under lease by the Company or any such Subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or such Subsidiary,
in each case except as described or incorporated by reference in or
contemplated by the Prospectus.
3. Purchase, Sale and Delivery of the Shares.
(a) (i) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company,
the Shares at a purchase price of $13.20 per share of Common Stock. The
delivery of and payment for the Shares shall be made at the offices of
Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000 at 9:00 a.m. on March 18, 2002, or at such other place, time or
date as the Underwriter and the Company may agree upon or as the
Underwriter may determine, such time and date of delivery against
payment being herein referred to as the "Closing Date."
(b) Payment for the Shares shall be made at the Closing Date
by wire transfer in immediately available-funds to the order of the
Company. The Company shall deliver, or cause to be delivered a credit
representing the Shares to an account or accounts at The Depository
Trust Company as designated by the Underwriter for the accounts of the
Underwriter, at the Closing Date, against the irrevocable release of a
wire transfer of immediately available funds for the amount of the
purchase price thereof. Time shall be of the essence, and delivery at
the time and place specified in this Agreement is a further condition
to the obligations of the Underwriter.
(c) Not later than 12:00 noon on the first business day
following the date of this Agreement, the Company shall deliver or
cause to be delivered copies of the Prospectus in such quantities and
at such places, as the Underwriter shall request.
4. Offering by the Underwriter. Upon authorization by the Company of
the release of the Shares, the Underwriter proposes to offer the Shares for sale
to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the Prospectus
and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rule 424(b) under the
Securities Act. During any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act, the
Company (i) will comply with all requirements imposed upon it by the
Securities Act and the Exchange Act and the respective rules and
regulations of the Commission thereunder to the extent necessary to
permit the continuance of sales of or dealings in the Shares in
accordance with the provisions hereof and of the Prospectus, as then
amended or supplemented, and (ii) will not file with the Commission the
Prospectus or any amendment or supplement to such prospectus or any
amendment to the Registration Statement or any Rule 462(b) Registration
Statement of which the Underwriter shall not previously have been
advised and furnished with a copy for a reasonable period of time prior
to the proposed filing and as to which filing the Underwriter shall not
have given its consent; provided, that the foregoing provision of this
clause (ii) does not prohibit the Company from making filings with the
Commission of statements and reports that it reasonably believes are
required to be made under the Exchange Act. The Company will prepare
and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly upon request by the Underwriter
or counsel for the Underwriter, any amendments to the Registration
Statement or amendments or supplements to the Prospectus that may be
necessary or advisable in connection with the distribution of the
Shares by the Underwriter, and will use its best efforts to cause any
such amendment to the Registration Statement to be declared effective
by the Commission as promptly as possible. The Company will advise the
Underwriter, promptly after receiving notice thereof, of the time when
the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement
thereto has been filed and will provide evidence satisfactory to the
Underwriter of each such filing or effectiveness.
(b) The Company will advise the Underwriter, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto or any order
preventing or suspending the use of the Prospectus or any amendment or
supplement thereto, (ii) the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or
(iv) any request made by the Commission for amending the Registration
Statement or any Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(c) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the Securities
Act, any event occurs as a result of which the Prospectus as then
amended or supplemented, would include any untrue statement of a
material fact or omit 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, or if for any other reason it is
necessary at any time to amend or supplement, the Prospectus to comply
with the Securities Act, the Exchange Act or the respective rules or
regulations of the Commission thereunder, the Company will promptly
notify the Underwriter thereof and, subject to Section 5(a) hereof,
will prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement
to the Prospectus that corrects such statement or omission or effects
such compliance.
(d) The Company will, without charge, provide (i) to the
Underwriter and to counsel for the Underwriter a conformed copy of the
Registration Statement and each amendment thereto (in each case
including exhibits thereto) or any Rule 462(b) Registration Statement
and (ii) as soon after the execution and delivery of this Agreement as
is practicable and thereafter from time to time for such period as in
the reasonable opinion of counsel for the Underwriter a prospectus
relating to the Shares is required by the Securities Act to be
delivered in connection with sales by the Underwriter or a dealer, as
many copies of the Prospectus and any amendment or supplement thereto
as the Underwriter may reasonably request.
(e) The Company, as soon as practicable when required, will
make generally available to its securityholders and to the Underwriter
a consolidated earnings statement of the Company and its Subsidiaries
that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
(f) The Company will use reasonable commercial efforts to
qualify of the Shares for offering and sale under the securities or
blue sky laws of such jurisdictions as the Underwriter may designate
and will continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Shares, provided,
however, that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction.
(g) The Company will apply the net proceeds from the sale of
the Shares as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of the Underwriter, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of any option to purchase or other sale or
disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common
Stock for a period of 90 days after the date hereof, except pursuant to
this Agreement and except for issuances pursuant to (A) the exercise of
employee stock options outstanding on the date hereof, (B) the terms of
convertible or exchangeable securities of the Company outstanding on
the date hereof, or (C) any acquisition transaction or exchange offer
announced by the Company prior to the date hereof.
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (ii) (A) sell, bid for, purchase,
or pay anyone any compensation for soliciting purchases of, the Shares
or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(j) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act,
will file all documents required to be filed with the Commission
pursuant to Section 13, 14, or 15 of the Exchange Act within the
periods required by the Exchange Act and the rules and regulations
thereunder.
(k) The Company will use its best efforts to cause its Common
Stock to continue to be listed on the NYSE, or in lieu thereof, on the
American Stock Exchange or the NASDAQ National Market System.
6. Expenses. The Company will pay, and hold the Underwriter harmless
from, the following costs and expenses incident to the performance of its
obligations under this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 10
hereof: (i) the printing or other production of documents with respect to the
transactions, including any costs of printing the registration statement
originally filed with respect to the Shares and any amendment thereto, any Rule
462(b) Registration Statement, the Prospectus and any amendment or supplement
thereto, this Agreement and any blue sky memoranda, (ii) all arrangements
relating to the delivery to the Underwriter of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel, accountants and any
other experts or advisors retained by the Company, (iv) preparation, issuance
and delivery to the Underwriter of any certificates evidencing the Shares,
including transfer agent's and registrar's fees, (v) the qualification of the
Shares under state securities and blue sky laws, including filing fees and
reasonable fees and disbursements of counsel for the Underwriter relating
thereto, (vi) the filing fees of the Commission (and the National Association of
Securities Dealers, Inc.) relating to the Shares, and (vii) the listing of the
Shares on the NYSE. If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriter set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 10 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter upon
demand for all out-of-pocket expenses (including fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Shares. The Company shall not in any event be liable to
the Underwriter for the loss of anticipated profits from the transactions
covered by this Agreement.
7. Conditions of the Underwriter's Obligations. The obligations of the
Underwriter to purchase and pay for the Shares shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company of its covenants and agreements hereunder and to
the following additional conditions:
(a) The Registration Statement shall have become effective
prior to the date hereof and all filings required by Rules 424(b), 430A
and 462 under the Securities Act shall have been timely made; no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any document
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened or, to the knowledge of the Company or the Underwriter,
shall be contemplated by the Commission; and the Company shall have
complied with any request of the Commission for additional information
(to be included in the Registration Statement, or the Prospectus or
otherwise).
(b) The Underwriter shall have received an opinion, dated the
Closing Date, of Gallop, Xxxxxxx & Xxxxxx, X.X., counsel for the
Company, to the effect that:
(i) the Company and each of the Subsidiaries have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation and are duly qualified to transact business as foreign
corporations and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified does not
amount to a material liability or disability to the Company and the
Subsidiaries, taken as a whole;
(ii) the Company and each of the Subsidiaries have
corporate power to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement
and the Prospectus, and the Company has corporate power to enter into
this Agreement and to carry out all the terms and provisions hereof and
thereof to be carried out by it;
(iii) the Company has authorized capital stock as set
forth in the Prospectus and the description of the capital stock of the
Company conforms in all material respects to the description thereof
contained in the Prospectus; the Shares have been duly authorized and
validly issued and are fully paid and nonassessable; no holders of
outstanding shares of capital stock of the Company are entitled as such
to any preemptive or other rights to subscribe for any of the Shares
under the Delaware General Corporation Law or the Company's Certificate
of Incorporation or by-laws;
(iv) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of the
Company and this Agreement has been duly executed and delivered by the
Company;
(v) the compliance by the Company with the provisions
of this Agreement and the consummation of the other transactions herein
contemplated do not conflict with or result in a breach or violation of
any of the terms and provisions of the charter documents or by-laws of
the Company;
(vi) to the best knowledge of such counsel, no legal
or governmental proceedings are pending to which the Company or any of
the Subsidiaries is a party or to which the property of the Company or
any of the Subsidiaries is subject that are required to be described in
the Registration Statement and are not described therein, and, no such
proceedings have been threatened against the Company or any of the
Subsidiaries or with respect to any of their respective properties;
and, to the best knowledge of such counsel, no contract or other
document is required to be described in the Registration Statement, the
Prospectus or to be filed as an exhibit to the Registration Statement
that is not described therein or filed as required;
(vii) the issuance, offering and sale of the Shares
to the Underwriter by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument, known to such counsel, to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or any of their respective properties are bound, or
the charter documents or by-laws of the Company or any of the
Subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator known to such counsel and applicable to the Company or any
of the Subsidiaries; and
(viii) the Registration Statement and the Prospectus
(excluding the financial statements and other financial or statistical
information contained or incorporated by reference therein and any
information furnished by the Underwriter, as to which such counsel need
express no opinion) comply on their face as to form in all material
respects with the applicable requirements of the Securities Act and the
respective rules and regulations of the Commission thereunder and, to
the knowledge of such counsel, the Registration Statement is effective
under the Securities Act, and no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is threatened,
pending or contemplated.
Such counsel shall also state that it has participated in telephone calls and
exchanges of information and comments with officers and other representatives of
the Company and representatives of the independent public accountants of the
Company, with respect to the contents of the Registration Statement and the
Prospectus. Although such counsel need not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and need not make any
representation that it has independently verified the accuracy, completeness or
fairness of such statements, such counsel shall state that on the basis of the
foregoing and the information disclosed to it (i) no facts came to its attention
that lead it to believe that the Registration Statement, as of the time it was
declared effective under the Securities Act, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading (it being
understood that such counsel need not express any view with respect to the
financial statements, including the notes and schedules thereto and the
auditor's report thereon, or any other information of a financial or accounting
nature or statistical data set forth or referred to in the Registration
Statement or any document incorporated therein by reference or any exhibits
thereto), and (ii) no facts have come to such counsel's attention that lead it
to believe that the Prospectus, as of the time it was filed with the Commission,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not express any view with
respect to the financial statements including the notes and schedules thereto
and the auditor's report thereon, or any other information of a financial or
accounting nature or statistical data set forth or referred to in the Prospectus
or any document incorporated therein by reference).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. References to the Registration
Statement and the Prospectus in this Section 7(b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Underwriter shall have received an opinion, dated the
Closing Date, of Stroock & Stroock & Xxxxx LLP, counsel for the
Underwriter, with respect to the sale of the Shares and such other
related matters as the Underwriter may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Underwriter shall have received from Ernst & Young,
LLP a letter or letters dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) they are independent accountants with respect to
the Company and its consolidated subsidiaries within the meaning of the
Securities Act, and the Exchange Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and included in the
Registration Statement and the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Securities Act, the Exchange Act and the related published rules and
regulations thereunder;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated condensed financial statements
of the Company and its consolidated subsidiaries, carrying out certain
specified procedures (which do not constitute an examination made in
accordance with generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the comments
set forth in this Section 7(d)(iii), a reading of the minute books of
the stockholders, the board of directors and any committees thereof of
the Company and each of its consolidated subsidiaries, and inquiries of
certain officials of the Company and its consolidated subsidiaries who
have responsibility for financial and accounting matters, nothing came
to their attention that caused them to believe that:
(A) the unaudited condensed consolidated financial statements of
the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Securities
Act, the Exchange Act and the related published rules and
regulations thereunder, or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included in the Registration Statement
and the Prospectus; and
(B) at a specific date not more than five business days prior to
the date of such letter, there were any changes in the capital
stock or long-term debt of the Company and its consolidated
subsidiaries or any decreases in net current assets or
stockholders' equity of the Company and its consolidated
subsidiaries, in each case compared with amounts shown on the
December 31, 2001 audited consolidated balance sheet
incorporated by reference in the Registration Statement and
the Prospectus; or for the period from December 31, 2001, to
such specified date, there were any decreases, as compared
with the corresponding period in the preceding year and with a
period of corresponding length ending on December 31, 2001, in
net revenues, net income before income taxes or total or per
share amounts of net income of the Company and its
consolidated subsidiaries, except in all instances for
changes, decreases or increases set forth in such letter.
In the event that the letter referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriter that (A) such letter shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriter deems such explanation unnecessary, and (B) such changes, decreases
or increases do not, in the sole judgment of the Underwriter, make it
impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof.
References to the Registration Statement and the Prospectus in this
Section 7(d) with respect to the letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Underwriter shall have received a certificate, dated
the Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company
in this Agreement are true and correct as if made on and as of the
Closing Date; the Registration Statement, as amended as of the Closing
Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as of the
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto and
no order directed at any document incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto has been issued, and no proceedings
for that purpose have been instituted or threatened or, to the best of
the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement, the Preliminary
Prospectus and the Prospectus, neither the Company nor any of its
Subsidiaries has sustained any loss that is material to the Company and
its Subsidiaries taken as a whole or interference with their respective
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been
any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, net worth or results of operations of the Company and its
Subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
Such officers' certificate may state that it is being delivered by each officer
on behalf of the Company and no personal liability shall attach to the
individual executing the certificate absent fraudulent misrepresentation.
(f) The Underwriter shall have received such documentation as
may be necessary to deliver the Shares to the Underwriter in a form
satisfactory to the Underwriter.
(g) Prior to the commencement of the offering of the Shares,
the Shares shall have been approved for listing on the NYSE, subject to
official notice of issuance.
(h) On or before the Closing Date, the Underwriter and counsel
for the Underwriter shall have received such further certificates,
documents or other information as they may have reasonably requested
from the Company.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriter and counsel
for the Underwriter. The Company shall furnish to the Underwriter such conformed
copies of such opinions, certificates, letters and documents in such quantities
as the Underwriter and counsel for the Underwriter shall reasonably request.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person
may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any
amendment thereto, the Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(iii) any inaccuracy in or breach of the
representations and warranties of the Company contained herein or any
failure of the Company to perform its obligations hereunder or under
law;
and will reimburse, as incurred, the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by the Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or any
amendment thereto, the Prospectus or any amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use
therein; and provided, further, that the Company will not be liable to
the Underwriter or any person controlling the Underwriter with respect
to any such untrue statement or omission made in any Prospectus that is
corrected in any amendment or supplement thereto if the person
asserting any such loss, claim, damage or liability purchased Shares
from the Underwriter but was not sent or given a copy of the Prospectus
(as amended or supplemented), other than the documents incorporated by
reference therein, at or prior to the written confirmation of the sale
of such Shares to such person in any case where such delivery of the
Prospectus as amended or supplemented is required by the Securities
Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section
5 of this Agreement. This indemnity agreement will be in addition to
any liability that the Company may otherwise have. The Company will
not, without the prior written consent of the Underwriter, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Underwriter
or any person who controls the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of
the Underwriter and such controlling persons from all liability arising
out of such claim, action, suit or proceeding. This indemnity agreement
will be in addition to any liability that the Company may otherwise
have.
(b) The Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto, (ii)
the omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto,
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause,
will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability that such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8
except to the extent (but only to the extent) that failure to give
notice shall prejudice such party's rights. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one
or more legal defenses available to the indemnified party and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party and would make the representation
of all such parties inappropriate, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of
counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 8(c) for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or
circumstances, designated by the Underwriter in the case of Section
8(b), representing the indemnified parties under such Section 8(b) who
are parties to such action or actions) or (ii) the indemnifying party
does not promptly retain counsel satisfactory to the indemnified party
or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such
indemnified party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof), each indemnifying party, in order to provide for just
and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other from the offering of the
Shares or (ii) if the allocation provided by the foregoing clause (i)
is not permitted by applicable law, not only such relative benefits but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party or parties on the other in connection
with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting discounts but before deducting expenses) received by the
Company bear to the total profits received by the Underwriter. ("Total
profits" are defined as the difference between the total price at which
the Underwriter sells the Shares to the public and the total price that
the Underwriter pays to purchase the Shares from the Company). The
relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriter,
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any
other equitable considerations appropriate in the circumstances. The
Company and the Underwriter agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to above in this Section
8(d). Notwithstanding any other provision of this Section 8, the
Underwriter shall not be obligated to make contributions hereunder in
excess of any 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 that such Underwriter has
otherwise been required to pay in respect of the same or any
substantially similar claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8(d), each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the
Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company.
9. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers, and
the Underwriter set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers or directors, the Underwriter or any controlling person referred to
in Section 8 hereof and (ii) delivery of and payment for the Shares. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6 and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. Termination.
(a) This Agreement may be terminated with respect to the
Shares in the sole discretion of the Underwriter by notice to the
Company given prior to the Closing Date in the event that the Company
shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to the Closing Date:
(i) the Company and the Subsidiaries, taken as a
whole, shall have, in the sole judgment of the Underwriter, sustained
any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective material
adverse change (including without limitation a change in management or
control of the Company), in the financial condition, net worth or
results of operations of the Company and its Subsidiaries, except in
each case as described in or contemplated by the Prospectus;
(ii) trading in the Common Stock shall have been
suspended by the Commission or the NYSE or trading in securities
generally on the New York or American Stock Exchange shall have been
suspended or minimum or maximum prices shall have been established on
any such exchange;
(iii) a banking moratorium shall have been declared
by New York or United States authorities; or
(iv) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign
power, (B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or (C) any other calamity or
crisis or material adverse change in general economic, political or
financial conditions having an effect on the U. S. financial markets
that, in the sole judgment of the Underwriter, makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Shares as contemplated by the Registration Statement, as amended as of
the date hereof.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as
provided in Section 9 hereof.
11. Information Supplied by the Underwriter. The information furnished
by the Underwriter to the Company for the purposes of Sections 2(b) and 8 hereof
will be set forth in a letter delivered on the Closing Date. The Underwriter
confirms that such statements (to such extent) are correct.
12. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriter, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to Xxxxx Xxxx, Xxxxxxx Xxxxx & Associates,
Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, (facsimile: (727)
573-8274), with a copy to Xxxx X. Xxxxxx, Stroock & Stroock & Xxxxx LLP, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, (facsimile: (000) 000-0000); and if sent
to the Company, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Xxxxxx Xxxxx, CFO and
Vice-President-Finance, Maverick Tube Corporation, 00000 Xxxxxxxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, (facsimile: (000)000-0000), with a copy
to Xxxxxx X. Xxxxxx, Xxxxxx, Xxxxxxx & Xxxxxx, X.X., 000 Xxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, (facsimile: (000)000-0000).
13. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the Underwriter, the Company, and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 8(a)of this Agreement shall also be for the
benefit of any person or persons who control the Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii)
the indemnities of the Underwriter contained in Section 8(b) of this Agreement
shall also be for the benefit of the Company, the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act. No purchaser of Shares
from the Underwriter shall be deemed a successor because of such purchase.
14. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and the
Underwriter.
Very truly yours,
MAVERICK TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Vice President
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