2,000,000 SHARES
MAVERICK TUBE CORPORATION
COMMON STOCK
__________
UNDERWRITING AGREEMENT
St. Petersburg, Florida
September __, 1999
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxx Xxxxxx & Company, Inc.
As Representatives of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
Maverick Tube Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule I
annexed hereto (the "Underwriters") an aggregate of 2,000,000 shares of
Common Stock, par value $.01 per share (the "Common Stock"), of the
Company. As used herein, all references to "Common Stock" shall include
the associated Preferred Stock Purchase Rights issued pursuant to the
Shareholder Rights Agreement dated as of July 24, 1998 between the
Company and Xxxxxx Trust and Savings Bank, as rights agent. The
aggregate of 2,000,000 shares to be purchased from the Company are
herein called the "Firm Shares." In addition, the Company has agreed to
sell to the Underwriters, upon the terms and conditions set forth
herein, up to 300,000 additional shares of Common Stock (the "Additional
Shares") to cover over-allotments by the Underwriters, if any. The Firm
Shares and, to the extent such option is exercised, the Additional
Shares are hereinafter collectively referred to as the "Shares." Xxxxxxx
Xxxxx & Associates, Inc. and Xxxxxx Xxxxxx & Company, Inc. are acting as
the representatives of the several Underwriters and in such capacity are
hereinafter referred to as the "Representatives."
The Company wishes to confirm as follows its agreement with you
and the other several Underwriters, on whose behalf you are acting, in
connection with the several purchases of the Shares from the Company.
1. SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The
Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Act"), a registration
statement on Form S-3 (File No. 333-87045), including a prospectus
subject to completion, relating to the Shares. Such registration
statement (including all financial schedules and exhibits), as amended
XXXXXXX XXXXX & ASSOCIATES, INC. Page 2
at the time when it becomes effective and as thereafter amended by any
post effective amendment, is referred to in this Agreement as the
"Registration Statement." The prospectus in the form included in the
Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance upon Rule 430A
under the Act and such information is included in a prospectus filed
with the Commission pursuant to Rule 424(b) under the Act or as part of
a post-effective amendment to the Registration Statement after the
Registration Statement becomes effective, the prospectus as so filed, is
referred to in this Agreement as the "Prospectus." If the Company
elects to rely on Rule 434 under the Act, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the term sheet contemplated by Rule 434, taken together,
provided to the Underwriters by the Company in reliance on Rule 434
under the Act. If the Company files another registration statement with
the Commission to register a portion of the Shares pursuant to Rule
462(b) under the Act (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to include
the registration statement on Form S-3 (File No. 87045) and the Rule 462
Registration Statement, as each such registration statement may be
amended pursuant to the Act. The prospectus subject to completion in
the form included in the Registration Statement at the time of the
initial filing of such Registration Statement with the Commission and as
such prospectus is amended from time to time until the date of the
Prospectus are collectively referred to in this Agreement as the
"Prepricing Prospectus." Any reference in this Agreement to the
Registration Statement, any Prepricing 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 under the Act, as of
the date of the Registration Statement, such Prepricing Prospectus or
the Prospectus, as the case may be, and any reference to any amendment
or supplement to the Registration Statement, any Prepricing Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3.
As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment
or supplement thereto.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby
agrees to sell the Firm Shares to the Underwriters and, upon the basis
of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein,
each Underwriter agrees, severally and not jointly, to purchase from the
Company at a purchase price of $______ per Share (the "purchase price
per Share"), the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares as
adjusted pursuant to Section 10 hereof).
The Company also agrees to sell up to 300,000 Additional Shares to
the Underwriters and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, the Underwriters shall have the
right for 30 days from the date of this Agreement to purchase from the
Company up to 300,000 Additional Shares at the purchase price per Share
for the Firm Shares. The Additional Shares may be purchased solely for
the purpose of covering over-allotments, if any, made in connection with
the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares
XXXXXXX XXXXX & ASSOCIATES, INC. Page 3
(subject to such adjustments as you may determine to avoid fractional
shares) which bears the same proportion to the total number of
Additional Shares to be sold as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such
number of Firm Shares as adjusted pursuant to Section 10 hereof) bears
to 2,000,000.
SECTION 3. TERMS OF PUBLIC OFFERING. The Company has been
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 and initially to offer the Shares upon the
terms set forth in the Prospectus.
SECTION 4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery
to the Underwriters of the Firm Shares and payment therefor shall be
made at the offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida
time, on ___________, 1999 (the "Closing Date"). The place of delivery
for the Firm Shares and the Closing Date may be varied by agreement
between the Representatives and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the offices
of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida time, on
such date or dates (the "Additional Closing Date") (which may be the
same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than three nor later than ten business days
after the giving of the notice hereinafter referred to), as shall be
specified in a written notice from you on behalf of the Underwriters to
the Company, of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. Such notice may be
given to the Company by you at any time within 30 days after the date of
this Agreement. The place of delivery for the Additional Shares and the
Additional Closing Date may be varied by agreement between you and the
Company.
Certificates for the Firm Shares and for any Additional Shares to
be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 p.m., St. Petersburg,
Florida time, on the second business day preceding the Closing Date or
the Additional Closing Date, as the case may be. Such certificates
shall be made available to you in St. Petersburg, Florida for inspection
and packaging not later than 9:30 a.m., St. Petersburg, Florida time, on
the business day immediately preceding the Closing Date or the
Additional Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be purchased
hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the
purchase price therefor by wire transfer in immediately available funds,
to the account specified by the Company to the Underwriters no later
than the business day prior to the Closing Date.
SECTION 5. AGREEMENTS OF THE COMPANY. The Company agrees with
the several Underwriters as follows:
(a) The Company will use commercially reasonable efforts
to cause the Registration Statement to become effective, if it has
not already become effective, and will advise you promptly and, if
requested by you, will confirm such advice in writing (i)
XXXXXXX XXXXX & ASSOCIATES, INC. Page 4
when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (ii) if
Rule 430A under the Act is employed, when the Prospectus or term
sheet (as described in Rule 434(b) under the Act) has been timely
filed pursuant to Rule 424(b) under the Act, (iii) of any request
by the Commission for amendments or supplements to the
Registration Statement, any Prepricing Prospectus or the
Prospectus or for additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification
of the Shares for offering or sale in any jurisdiction or the
initiation (or threatened initiation) of any proceeding for such
purposes, and (v) within the period of time referred to in Section
5(e) below, of any change in the Company's condition (financial or
other), business, prospects, properties, net worth or results of
operations, or of any event that comes to the attention of the
Company that makes any statement made in the Registration
Statement or the Prospectus (as then amended or supplemented)
untrue in any material respect or that requires the making of any
additions thereto or changes therein in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to
comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will use commercially
reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time. If the Company elects to
rely on Rule 434 under the Act, the Company will provide the
Underwriters with copies of the form of Rule 434 Prospectus
(including copies of a term sheet that complies with the
requirements of Rule 434 under the Act), in such number as the
Underwriters may reasonably request, and file with the Commission
in accordance with Rule 424(b) of the Act the form of Prospectus
complying with Rule 434(c) of the Act before the close of business
on the first business day immediately following the date hereof.
If the Company elects not to rely on Rule 434 under the Act, the
Company will provide the Underwriters with copies of the form of
Prospectus, in such number as the Underwriters may reasonably
request, and file with the Commission such Prospectus in
accordance with Rule 424(b) of the Act before the close of
business on the first business day immediately following the date
hereof.
(b) The Company will furnish to you, without charge, such
copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial
statements and all exhibits thereto, as you may reasonably request
and will also furnish to you, without charge, such number of
conformed copies of the Registration Statement as originally filed
and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration
Statement or any amendment to the Registration Statement or make
any amendment or supplement to the Prospectus of which you shall
not previously have been advised (with a reasonable opportunity to
review such amendment or supplement) or to which you have
reasonably objected after being so advised and having been given a
reasonable opportunity to review same.
(d) Prior to the execution and delivery of this Agreement,
the Company has delivered or will deliver to you, without charge,
in such quantities as you have requested
XXXXXXX XXXXX & ASSOCIATES, INC. Page 5
or may hereafter reasonably request, copies of each form of the
Prepricing Prospectus. The Company consents to the use, in
accordance with the provisions of the Act and with the securities
or Blue Sky laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished
by the Company.
(e) As soon after the execution and delivery of this
Agreement as is reasonably practicable and thereafter from time to
time for such period as in the reasonable opinion of counsel for
the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or a dealer,
and for so long a period as you may request for the distribution
of the Shares, the Company will deliver to each Underwriter and
each dealer, without charge, as many copies of the Prospectus (and
of any amendment or supplement thereto) as they may reasonably
request. The Company consents to the use of the Prospectus (and
of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of
the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering and sale of the Shares and for
such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any
Underwriter or dealer. If at any time prior to the later of (i)
the completion of the distribution of the Shares pursuant to the
offering contemplated by the Registration Statement or (ii) the
expiration of the prospectus delivery requirements with respect to
the Shares under section 4(3) of the Act and Rule 174 thereunder,
any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend
the Prospectus to comply with the Act or any other law, the
Company will forthwith prepare and, subject to Section 5(a) and
5(c) hereof, file with the Commission and use its best efforts to
cause to become effective as promptly as possible an appropriate
supplement or amendment thereto, and will furnish to each
Underwriter and to each dealer who has previously requested
Prospectuses, without charge, a reasonable number of copies
thereof.
(f) The Company will cooperate with you and counsel for
the Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws
of such jurisdictions as you may reasonably designate and will
file such consents to service of process or other documents as may
be reasonably necessary in order to effect and maintain such
registration or qualification for so long as required to complete
the distribution of the Shares; provided that in no event shall
the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified, to subject itself
to taxation as a result of doing business in any jurisdiction
where it is not now so subject to taxation, to qualify as a dealer
in securities in any jurisdiction or to take any action which
would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject. In the event that
the qualification of the Shares in any jurisdiction is suspended,
the Company shall so advise you promptly in writing.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 6
(g) The Company will make generally available to its
security holders a consolidated earnings statement, which need not
be audited, covering a period of at least twelve months commencing
after the effective date of the Registration Statement and the
Rule 462 Registration Statement, if any, and ending not later than
15 months thereafter, as soon as reasonably practicable after the
end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11 (a) of the Act and Rule 158
promulgated thereunder.
(h) During the period ending five years from the date
hereof, the Company will furnish to you and, upon your request, to
each of the other underwriters (i) as soon as available, a copy of
each report or proxy statement, quarterly or annual report or
other report of the Company mailed to stockholders or filed with
the Commission, the National Association of Securities Dealers,
Inc. (the "NASD") or the Nasdaq National Market or any securities
exchange, and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof
(other than as a result of a failure by the Representatives or any
Underwriter to fulfill their or its obligations hereunder or
pursuant to clauses (i)-(iii) of Section 11) or if this Agreement
shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Representatives for all out-of-pocket
expenses (including fees and expenses of counsel for the
Underwriters but excluding wages and salaries paid by the
Representatives) reasonably incurred by you in connection
herewith.
(j) The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder in accordance with the
description set forth in the Prospectus under the caption "Use of
Proceeds."
(k) If Rule 430A under the Act is employed, the Company
will timely file the Prospectus or term sheet (as described in
Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) The Company will not (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for
the sale of or otherwise dispose of or transfer any shares of
Common Stock or securities convertible into or exchangeable or
exercisable for shares of Common Stock, whether now owned or
acquired after the date of the Prospectus or with respect to which
the power of disposition is acquired after the date of the
Prospectus, or file any registration statement under the Act with
respect to any of the foregoing; or (ii) enter into any swap or
other agreement or any other agreement that transfers, in whole or
in part, directly or indirectly, the economic consequences of
ownership of shares of Common Stock whether any such swap or
transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise except to the Underwriters
pursuant to this Agreement for a period of 180 days from the date
of the Prospectus without the prior written consent of Xxxxxxx
Xxxxx & Associates, Inc.; provided, however, that the
XXXXXXX XXXXX & ASSOCIATES, INC. Page 7
Company may issue shares of Common Stock or securities convertible
into or exercisable or exchangeable for shares of Common Stock
pursuant to the Maverick Tube Corporation Amended and Restated
1990 Stock Option Plan, the Maverick Tube Corporation 1994 Stock
Option Plan, the Maverick Tube Corporation Director Stock Option
Plan dated February 15, 1995 and pursuant to other employee
benefit and compensation arrangements currently in effect.
(m) The Company will not, directly or indirectly, take any
action which would constitute, or any action designed or which
might reasonably be expected to cause or result in or constitute,
under Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of
the Shares.
(n) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of its incorporation or the rules
of the Nasdaq National Market or any national securities exchange
on which the Common Stock is listed, a registrar (which, if
permitted by applicable laws and rules, may be the same entity as
the transfer agent) for its Common Stock.
(o) Prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company will furnish to you, as
promptly as possible, copies of any unaudited interim consolidated
financial statements of the Company and each of the subsidiaries
of the Company identified on Schedule II attached hereto
("Subsidiary" or, collectively, the "Subsidiaries") for any period
subsequent to the periods covered by the financial statements
appearing in the Prospectus.
(p) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter on the date hereof,
and shall be deemed to represent and warrant to each Underwriter on the
Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Company satisfies all of the requirements of the
Act for use of Form S-3 for the offering of Shares contemplated
hereby. Each Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424(a)
under the Act, complied when so filed with the provisions of the
Act.
(b) The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus, and the
Prepricing Prospectus included as part of the Registration
Statement declared effective by the Commission complies as to form
with the requirements of the Act. The Registration Statement
(including any Rule 462 Registration Statement), in the form in
which it becomes effective and also in such form as it may be when
any post-effective amendment thereto shall become effective, and
the Prospectus, and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, will comply
with the provisions of the Act and will not
XXXXXXX XXXXX & ASSOCIATES, INC. Page 8
at any such times contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
that this representation and warranty does not apply to statements
in or omissions from the Registration Statement or the Prospectus
(or any amendment or supplement thereto) made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document
was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and
the rules and regulations thereunder, and any further Incorporated
Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and
the rules and regulations thereunder; no such Incorporated
Document when it was filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed),
contained an 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; and no
such further Incorporated Document, when it is filed, will contain
an untrue statement of a material fact or will omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(d) The capitalization of the Company is as set forth in
the Prospectus as of the date set forth therein. All the
outstanding shares of Common Stock of the Company have been duly
authorized by all necessary corporate action on the part of the
Company and validly issued, are fully paid and nonassessable and
were not issued in violation of or subject to any preemptive
rights arising under the Company's Amended and Restated
Certificate of Incorporation or Bylaws, in each case as amended,
or under the Delaware General Corporation Law or similar rights;
the Shares to be issued and sold to the Underwriters by the
Company hereunder have been duly authorized by all necessary
corporate action on the part of the Company and, when issued and
delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and free of any preemptive or similar
rights; the capital stock of the Company conforms to the
description thereof in the Registration Statement and the
Prospectus (or any amendment or supplement thereto); and upon
delivery of certificates for the Shares pursuant to the terms of
this Agreement and payment for the Shares the Underwriters will
receive valid and marketable title to the Shares, free and clear
of any voting trust arrangements, liens, encumbrances, equities,
claims or defects in title to the several Underwriters purchasing
the Shares in good faith and without notice of any lien, claim or
encumbrance. Except as set forth in the Prospectus, the Company
is not a party to or bound by any outstanding options, warrants,
or similar rights to subscribe for, or contractual obligations to
issue, sell, transfer or acquire, any of its capital stock or any
securities convertible into or exchangeable for any of such
capital stock.
(e) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority
XXXXXXX XXXXX & ASSOCIATES, INC. Page 9
to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or conduct of its
business requires such registration or qualification, except where
the failure to so register or qualify does not have a material
adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Company.
(f) Each of the Subsidiaries is a corporation duly
organized, validly existing and in good standing in its
jurisdiction of incorporation or is a limited partnership duly
formed and validly existing in its jurisdiction of organization
except as described in the Prospectus, as the case may be, and
each Subsidiary has full corporate or partnership power and
authority to own, lease and operate its properties and to conduct
its business as presently conducted and as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its
business requires such qualification or registration, except where
the failure to so qualify or register does not have a material
adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole (a "Material
Adverse Effect"). The outstanding shares of capital stock of, and
the partnership interests in, each of the Subsidiaries, will have
been duly authorized and validly issued, are fully paid to the
extent required and nonassessable except as such nonassessability
may be affected by the partnership agreement of Maverick Tube,
L.P. or the partnership law of the state of the formation of such
partnership, and are owned by the Company directly or indirectly
through one of the other Subsidiaries, free and clear on any lien,
adverse claim, security interest, equity or other encumbrance
(except as set forth in the Prospectus). Except for the
Subsidiaries, the Company does not own a material interest in or
control, directly or indirectly, any other corporation,
partnership, joint venture, association, trust or other business
organization or entity.
(g) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened, against the
Company or any of the Subsidiaries, or to which any of their
property, is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto) but are not described as required. Except as
described in the Prospectus, there is no action, suit, inquiry,
proceeding, or investigation by or before any court or
governmental or other regulatory or administrative agency or
commission pending or, to the best knowledge of the Company,
threatened against or involving the Company or any Subsidiary, nor
is there any basis for any such action, suit, inquiry, proceeding
or investigation. There are no agreements, contracts, indentures,
leases or other instruments that are required to be described in
the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to or
incorporated by reference in the Registration Statement that are
not described or filed or incorporated by reference as required.
All such agreements, contracts, indentures, leases or other
instruments to which the Company or any of the Subsidiaries is a
party or to which any of their assets may be subject and that are
described in the Registration Statement or the Prospectus (or any
XXXXXXX XXXXX & ASSOCIATES, INC. Page 10
amendment or supplement thereto) or filed as an exhibit to or
incorporated by reference in the Registration Statement have been
duly authorized, executed and delivered by the Company or a
Subsidiary, constitute valid and binding agreements of the Company
or such Subsidiary and are enforceable against the Company or such
Subsidiary in accordance with the terms thereof.
(h) Neither the Company nor any Subsidiary is in violation
of its certificate or articles of incorporation or bylaws, or
other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to
the Company or any Subsidiary or of any decree of any court or
governmental agency or body having jurisdiction over the Company
or any Subsidiary, or in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which
the Company or any Subsidiary is a party or by which any of their
respective properties may be bound, except for such violations or
defaults which would not have a Material Adverse Effect, and there
does not exist any state of facts which constitutes an event of
default on the part of the Company or any of the Subsidiaries as
defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default.
(i) The execution and delivery of this Agreement and the
performance by the Company of its obligations under this Agreement
have been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its
terms.
(j) None of the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the
Company nor the consummation by the Company of the transactions
contemplated hereby (i) is or may be void or voidable by any
person or entity, (ii) requires any consent, approval,
authorization or other order of or registration or filing with,
any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be
required for the registration of the Shares under the Act, the
listing of the Shares for quotation on the Nasdaq National Market
and compliance with the securities or Blue Sky laws of various
jurisdictions and the clearance of the offering of the Shares with
the NASD, all of which will be, or have been, effected in
accordance with this Agreement) or conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under,
the certificate or articles of incorporation or bylaws, or other
organizational documents, of the Company or any Subsidiary, or
(iii) conflicts or will conflict with or constitutes a breach of,
or a default under (or an event which, with notice or lapse of
time or both, would constitute such an event), any agreement,
contract, indenture, lease or other instrument to which the
Company or any Subsidiary is a party or by which any of them or
any of their respective properties may be bound, or violates any
statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or any Subsidiary or any of
their respective properties, or results in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to
XXXXXXX XXXXX & ASSOCIATES, INC. Page 11
the terms of any agreement or instrument to which any of them is
a party or by which any of them may be bound or to which any of
their property or assets is subject.
(k) Each contract, agreement or arrangement to which the
Company or any Subsidiary is a party or by which it is bound, or
to which any of the property or assets of the Company or any
Subsidiary is subject, which is material to the condition
(financial or other), business, prospects, properties, net worth
or results of operations of the Company and its Subsidiaries,
taken as a whole, has been duly and validly authorized, executed
and delivered by the Company or such Subsidiary, as applicable,
and neither the Company nor any Subsidiary is in breach or default
of any obligation, agreement, covenant or condition contained in
any such contract, agreement or arrangement, except for such
breaches or defaults as would not have a Material Adverse Effect;
the Company knows of no present condition or fact which would
prevent compliance by the Company or any Subsidiary or any other
party thereto with the terms of any such contract, agreement or
arrangement in all material respects; neither the Company nor any
of its Subsidiaries has any present intention to exercise any
rights that it may have to cancel any such contract, agreement or
arrangement or otherwise to terminate its rights and obligations
thereunder, and none of them has any knowledge that any other
party to any such contract, agreement or arrangement has any
intention not to render full performance in all material respects
as contemplated by the terms thereof.
(l) Except as described in the Prospectus, the Company
does not have outstanding and at the Closing Date (and the
Additional Closing Date, if applicable) will not have outstanding
any options to purchase, or any warrants to subscribe for, or any
securities or obligations convertible into or exchangeable for, or
any contracts or commitments to issue or sell, any shares of
Common Stock or any such warrants or convertible or exchangeable
securities or obligations. No holder of securities of the Company
has rights to the registration of any securities of the Company
because of or in connection with the filing of the Registration
Statement, except (i) with respect to the Shares and (ii) any such
rights for which the Company has received valid and enforceable
waivers.
(m) Ernst & Young LLP, the certified public accountants
who have certified the financial statements filed as part of the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants as required
by the Act.
(n) The financial statements, together with related
schedules and notes, forming part of the Registration Statement
and the Prospectus (and any amendment or supplement thereto),
present fairly in all material respects both the historical and
pro forma consolidated financial position, results of operations
and changes in financial position of the Company and the
Subsidiaries on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and
statistical information and data set forth in the Registration
Statement and Prospectus (and any amendment or
XXXXXXX XXXXX & ASSOCIATES, INC. Page 12
supplement thereto) are in all material respects accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company. No financial
statements or schedules are required to be included in the
Registration Statement other than those that are so included
(o) Neither the Company nor any of the Subsidiaries has
sustained since June 30, 1999, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which loss or interference
is material to the Company and the Subsidiaries, taken as a whole;
and, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not
been, and prior to the Closing Date there will not be, any change
in the capital stock (other than shares issued pursuant to
exercise of employee stock options that the Prospectus indicates
are outstanding) or short-term debt or long-term debt of the
Company or any of the Subsidiaries, or any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations
of the Company and the Subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(p) The Company or each Subsidiary, as the case may be,
has good and marketable title to all property (real and personal)
described in the Prospectus as being owned by them, in each case
free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration
Statement and the Prospectus, in a document filed as an exhibit to
the Registration Statement or incorporated by reference in the
Registration Statement or such as are not materially burdensome
and do not interfere in any material respect with the use of the
property or the conduct of the business of the Company and the
Subsidiaries, taken as a whole, and the property (real and
personal) held under lease by each of the Company or the
Subsidiaries, as the case may be, is held by it under valid,
subsisting and enforceable leases with only such exceptions as in
the aggregate are not materially burdensome and do not interfere
in any material respect with the conduct of the business of the
Company and the Subsidiaries, taken as a whole.
(q) The Company has not distributed and will not
distribute prior to the Closing Date any offering material in
connection with the offering and sale of the Shares other than the
Prepricing Prospectus, the Registration Statement, the Prospectus
and such other materials permitted by the Act.
(r) The Company has not taken, directly or indirectly, any
action which constituted, or any action designed or which might
reasonably be expected to cause or result in or constitute, under
the Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of
the Shares.
(s) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 13
(t) The Company and each of the Subsidiaries have all
permits, licenses, franchises, approvals, consents and
authorizations of governmental or regulatory authorities or
private persons or entities (hereinafter "permit" or "permits") as
are necessary to own its properties and to conduct its business in
the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus, except where
the failure to have obtained any such permit has not and will not
have a Material Adverse Effect; the Company and each of the
Subsidiaries have fulfilled and performed all of their material
obligations with respect to each such permit and no event has
occurred which allows, or after notice or lapse of time would
allow, revocation or termination of any such permit or result in
any other material impairment of the rights of the holder of any
such permit, subject in each case to such qualification as may be
set forth in the Prospectus; and, except as described in the
Prospectus, such permits contain no restrictions that are
materially burdensome to the Company or any Subsidiary.
(u) The Company and each Subsidiary 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 it is engaged; and neither the Company
nor any Subsidiary has reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a comparable cost, except
as disclosed in the Registration Statement and the Prospectus.
(v) The Company and the Subsidiaries have complied and
will comply in all material respects with wage and hour
determinations issued by the U.S. Department of Labor under the
Service Contract Act of 1965 and the Fair Labor Standards Act in
paying its employees' salaries, fringe benefits and other
compensation for the performance of work or other duties in
connection with contracts with the U.S. government, and have
complied and will comply in all material respects with the
requirements of the Americans with Disabilities Act of 1990, the
Family and Medical Leave Act of 1993, the Employee Retirement
Income Security Act of 1974, the Civil Rights Act of 1964 (Title
VII), the Age Discrimination in Employment Act and state labor
laws, each as amended, except where the failure to comply with any
such requirements has not, and will not, have a Material Adverse
Effect.
(w) The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's
general or specific authorizations; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(x) Neither the Company nor any Subsidiary has directly or
indirectly, at any time during the past five years (i) made any
unlawful contribution to any candidate for political office, or
failed to disclose fully any contribution in violation of law, or
(ii)
XXXXXXX XXXXX & ASSOCIATES, INC. Page 14
made any payment to any federal, state or foreign governmental
official, or other person charged with similar public or quasi-
public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof or
applicable foreign jurisdictions.
(y) The Company and the Subsidiaries have obtained all required
permits, licenses and other authorizations, if any, which are
required under federal, state, regional, county, local and foreign
statutes, codes, ordinances and other laws relating to pollution
or protection of the environment, including laws relating to
emissions, discharges, releases, spilling, injecting, leaching, or
disposing into the environment or threatened releases of
pollutants, contaminants, chemicals or industrial, hazardous or
toxic materials or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, land
surface, or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, discharge into the environment, transport, or handling
of pollutants, contaminants, chemicals or industrial, hazardous or
toxic materials or wastes, or any regulation, rule, code, plan,
order, decree, judgment, injunction, notice or demand letter
issued, entered, promulgated, or approved thereunder
("Environmental Laws"), except for such permits, licenses and
other authorizations which if not obtained would not have a
Material Adverse Effect. The Company and the Subsidiaries are in
material compliance with all terms and conditions of all required
permits, licenses, and authorizations, and are also in material
compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and
timetables contained in the Environmental Laws. There is no
pending or, to the best knowledge of the Company, after due
inquiry, threatened civil or criminal litigation, notice of
violation, warning letter or administrative proceeding relating in
any way to the Environmental Laws (including, without limitation,
notices, demand letters or claims under the Resource Conservation
and Recovery Act of 1976, as amended ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), as amended by the Superfund Amendments
Reauthorization Act of 1987 ("XXXX"), the Toxic Substances Control
Act of 1976, the Emergency Planning and Community Right-to-Know
Act of 1986, the Clean Water Act of 1977, and the Clear Air Act of
1966, all as amended, and similar foreign, state, or local laws)
involving the Company. There have not been and there are not any
past, present, or foreseeable future events, conditions,
circumstances, activities, practices, incidents, actions or plans
involving the Company which may interfere with or prevent
continued compliance, or which may give rise to any common law or
legal liability, or otherwise form the basis of any present or
future claim, action, demand, suit, proceeding, hearing, study or
investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, arrangement for
disposal, transport, arrangement for transport or handling, or the
emission, discharge, release, or threatened release into the
environment, of any pollutant, contaminant, chemical or
industrial, hazardous or toxic material or waste, including,
without limitation, any liability arising, or any claim, action,
demand, suit, proceeding, hearing, study or investigation which
may be brought, under RCRA, CERCLA, XXXX, or similar foreign,
state, regional, county, or local laws, except for such events,
conditions, circumstances, activities, practices, incidents,
actions and plans which would not have a Material Adverse Effect.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 15
(z) All offers and sales of the Company's capital stock
and debt or other securities prior to the date hereof were made in
compliance with or were the subject of an available exemption from
the Act and all other applicable state and federal laws or
regulations, or any actions under the Act or any state or federal
laws or regulations in respect of any such offers or sales are
effectively barred by effective waivers or statutes of limitation.
(aa) The Company and the Subsidiaries own and have full
right, title and interest in and to, or have valid licenses to
use, each material trade name, trademark or service xxxx under
which the Company and the Subsidiaries conduct all or any material
part of their business, and the Company has created no lien or
encumbrance on, or granted any right or license with respect to,
any such trade name, trademark or service xxxx; there is no claim
pending against the Company or any of the Subsidiaries with
respect to any trade name, trademark or service xxxx and neither
the Company nor any of the Subsidiaries has received notice that
any trade name, trademark or service xxxx which it uses or has
used in the conduct of its business infringes upon or conflicts
with the rights of any third party. Neither the Company nor any
of the Subsidiaries has become aware that any material trade name,
trademark or service xxxx which it uses or has used in the conduct
of its business infringes upon or conflicts with the rights of any
third party.
(bb) All federal, state, local and foreign tax returns
required to be filed by or on behalf of the Company and each
Subsidiary with respect to all periods ended prior to the date of
this Agreement have been filed (or are the subject of valid
extensions) with the appropriate federal, state, local and foreign
authorities and all such tax returns, as filed, are accurate in
all material respects, except where the failure to file such state
and local returns would not have a Material Adverse Effect. All
federal, state, local and foreign taxes (including estimated tax
payments) required to be shown on all such tax returns or claimed
to be due from or with respect to the business of the Company and
each Subsidiary have been paid or reflected as a liability on the
financial statements of the Company and the Subsidiaries for
appropriate periods, except where the failure to pay or reflect as
a liability such federal, state, local and foreign taxes would not
have a Material Adverse Effect. All deficiencies asserted as a
result of any federal, state, local or foreign tax audits have
been paid or finally settled and, except as previously disclosed
to the Representatives in writing, no issue has been raised in any
such audit which by application of the same or similar principals,
reasonably could be expected to result in a proposed deficiency
for any other period not so audited. To the best knowledge of the
Company, no state of facts exists or has existed which would
constitute grounds for the assessment of any tax liability with
respect to the periods which have not been audited by appropriate
federal, state, local or foreign authorities, except for such tax
liability which would not have a Material Adverse Effect. There
are no outstanding agreements or waivers extending the statutory
period of limitation applicable to any federal, state, local or
foreign tax return for any period.
(cc) No relationship, direct or indirect, exists between or
among the Company or any Subsidiary on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any Subsidiary on the other hand, which is required by
the
XXXXXXX XXXXX & ASSOCIATES, INC. Page 16
Act to be described in the Registration Statement and the
Prospectus which is not so described.
(dd) The Shares have been approved for quotation on the
Nasdaq National Market, subject only to official notice of
issuance.
SECTION 7. EXPENSES. The Company hereby agrees with the several
Underwriters that the Company will pay or cause to be paid the costs and
expenses associated with the following: (i) the preparation, printing or
reproduction, and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), each
Prepricing Prospectus, the Prospectus, and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each Prepricing
Prospectus, the Prospectus, and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the offering of the Shares;
(iv) the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements
or documents printed (or reproduced) and delivered in connection with
the offering of the Shares; (v) the registration of the Common Stock
under the Exchange Act and the listing of the Shares on the Nasdaq
National Market; (vi) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(f) hereof (including the reasonable fees
and expenses of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees and the reasonable fees and
expenses of counsel for the Underwriters in connection with any filings
required to be made with the NASD in connection with the offering;
(viii) the transportation, lodging, graphics and other expenses
incidental to the Company's preparation for and participation in the
"roadshow" for the offering contemplated hereby; (ix) the fees and
expenses of the Company's accountants and the fees and expenses of
counsel for the Company; and (x) the performance by the Company of its
other obligations under this Agreement. Notwithstanding the foregoing,
in the event that the proposed offering is terminated for the reasons
set forth in Section 5(i) hereof, the Company agrees to reimburse the
Underwriters as provided in Section 5(i).
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. The Company agrees
to indemnify and hold harmless you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Prepricing Prospectus or in the Registration Statement
or the Prospectus or in any amendment or supplement thereto, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or arising out of or based upon any untrue
statement or alleged untrue statement of any material fact contained in
any audio or visual materials prepared by or on behalf of the Company
and used in connection with the marketing of the Shares, including,
without limitation, slides, videos, films and tape recordings prepared
by or on behalf of the
XXXXXXX XXXXX & ASSOCIATES, INC. Page 17
Company, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon an untrue statement or omission
or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the
information relating to an Underwriter furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use
in connection therewith; provided, however, that such indemnity with
respect to any Prepricing Prospectus shall not inure to the benefit of
any Underwriter or person controlling such Underwriter from whom the
person asserting such loss, claim, damage or liability purchased the
Shares which are the subject thereof if such person did not receive a
copy of the Prospectus at or prior to the confirmation of the sale of
such Shares to such person in any case where such delivery is required
by the Act and the untrue statement or omission of a material fact
contained in such Prepricing Prospectus was corrected in the Prospectus,
provided that the Company has delivered the Prospectus to the
Underwriters on a timely basis in order to permit the Prospectus to be
sent or given.
In addition to its other obligations under this Section 8, the
Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of
or based upon any untrue statement or omission, or any inaccuracy in the
representations and warranties of the Company herein or failure to
perform its obligations hereunder, all as set forth in this Section 8,
it will reimburse each Underwriter on a quarterly basis for all
reasonable legal or other out-of-pocket expenses incurred in connection
with investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligation
of the Company to reimburse each Underwriter for such expenses and the
possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, each
Underwriter shall promptly return it to the person(s) from whom it was
received, together with interest compounded daily determined on the
basis of the base lending rate announced from time to time by Chase
Manhattan Bank, N.A. (the "Prime Rate"). Any such interim reimbursement
payments which are not made to the Underwriters within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the
date of such request.
If any action or claim shall be brought against any Underwriter or
any person controlling any Underwriter in respect of which indemnity may
be sought against the Company, such Underwriter or such controlling
person shall promptly notify in writing the party or parties against
whom indemnification is being sought (the "indemnifying party" or
"indemnifying parties"), and such indemnifying party or parties shall
assume the defense thereof, including the employment of counsel
reasonably acceptable to such Underwriter or such controlling person and
payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying party or parties has
or have agreed in writing to pay such fees and expenses, (ii) the
indemnifying party or parties has or have failed to assume the defense
and employ counsel reasonably acceptable to the Underwriter or such
controlling person within a reasonable period of time following notice
from such Underwriter or such controlling person, or (iii) the named
parties to any such action (including any impleaded parties) include
both such Underwriter or such controlling person and the indemnifying
party or parties, and such Underwriter or such controlling person shall
have been advised by such counsel that
XXXXXXX XXXXX & ASSOCIATES, INC. Page 18
representation of such indemnified party and any indemnifying party or
parties by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by
the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party or parties
shall not have the right to assume the defense of such action on behalf
of such Underwriter or such controlling person); provided, however, that
counsel selected by such Underwriter or controlling person is reasonably
acceptable to the indemnifying party; and provided further that it is
understood and agreed that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys for all such Underwriters and controlling
persons (in addition to local counsel), which firm shall be designated
in writing by Xxxxxxx Xxxxx & Associates, Inc. The indemnifying party
or parties shall not be liable for any settlement of any such action
effected without its or their prior written consent, but if settled with
such prior written consent, or if there be a final judgment for the
plaintiff in any such action, the indemnifying party or parties agree to
indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment, but in the case of a judgment
only to the extent stated in the immediately preceding paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, and any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action or claim shall be brought or asserted against
the Company, any of its directors, any such officers, or any such
controlling person based on the Registration Statement, the Prospectus
or any Prepricing Prospectus, or any amendment or supplement thereto,
and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph, such Underwriter shall have the rights and
duties given to the Company by the preceding paragraph (except that if
the Company shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company,
its directors, any such officers, and any such controlling persons shall
have the rights and duties given to the Underwriters by the immediately
preceding paragraph.
In any event, the Company will not, without the prior written
consent of the Representatives, settle or compromise or consent to the
entry of any judgment in any proceeding or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not the Representatives or any person who controls
the Representatives within the meaning of Section 15 of the 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 all Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or
proceeding.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 19
If the indemnification provided for in this Section 8 is
unavailable or insufficient for any reason whatsoever to an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus (or any related term sheet used in reliance on Rule
434(b) under the Act); provided that, in the event that the Underwriters
shall have purchased any Additional Shares hereunder, any determination
of the relative benefits received by the Company or the Underwriters
from the offering of the Shares shall include the net proceeds (before
deducting expenses) received by the Company, and the underwriting
discounts and commissions received by the Underwriters, from the sale of
such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page
of the Prospectus (or any related term sheet used in reliance on Rule
434(b) under the Act). The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or by the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 8 was determined
by a pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in this Section 8 shall be deemed
to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective numbers of Firm
XXXXXXX XXXXX & ASSOCIATES, INC. Page 20
Shares set forth opposite their names in Schedule I hereto (or such
numbers of Firm Shares increased as set forth in Section 10 hereof) and
not joint.
Notwithstanding the second paragraph of this Section 8, any
losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or
expenses are incurred. The indemnity and contribution agreements
contained in this Section 8 and the representations and warranties of
the Company set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers or any person controlling the
Company, (ii) acceptance of any Shares and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the
Company, its directors or officers, or any person controlling the
Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
It is agreed that any controversy arising out of the operation of
the interim reimbursement arrangements set forth in the second paragraph
of this Section 8, including the amounts of any requested reimbursement
payments and the method of determining such amounts, shall be settled
by arbitration conducted pursuant to the Code of Arbitration Procedure
of the NASD. Any such arbitration must be commenced by service of a
written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the
party demanding arbitration does not make such designation of an
arbitration tribunal in such demand or notice, then the party responding
to said demand or notice is authorized to do so. Such an arbitration
would be limited to the operation of the interim reimbursement
provisions contained in the second paragraph of this Section 8, and
would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of
the second paragraph of this Section 8.
SECTION 9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder
are subject to the following conditions:
(a) The Registration Statement shall have become effective
not later than 12:00 noon, New York City time, on the date hereof,
or at such later date and time as shall be consented to in writing
by you, and all filings required by Rules 424(b), 430A and 462
under the Act shall have been timely made.
(b) Subsequent to the effective date of the Registration
Statement there shall not have occurred any change, or any
development involving, or which might reasonably be expected to
involve, a potential future material adverse change, in the
condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company, not
contemplated by the Prospectus (or any supplement thereto), that
in your reasonable opinion, as Representatives of the several
Underwriters, would materially and adversely affect the market for
the Shares.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 21
(c) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Gallop, Xxxxxxx &
Xxxxxx, X.X., counsel for the Company, dated the Closing Date (and
the Additional Closing Date, if any), satisfactory to you, to the
effect that:
(i) The Company has been duly and validly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, and
is qualified to do business and is in good standing in each
jurisdiction in which its ownership or leasing of properties
requires such qualification or the conduct of its business
requires such qualification (except where the failure to so
qualify would not have a material adverse effect on the
Company and the Subsidiaries as a whole); and the Company
has all necessary corporate power and, to the knowledge of
such counsel, all material governmental authorizations,
permits and approvals required to own its properties and
conduct its business as described in the Prospectus;
(ii) Each of the Subsidiaries has been duly and
validly formed and is validly existing as a corporation or
limited partnership, as applicable, in good standing under
the laws of the jurisdiction of its formation, and is
qualified or registered to do business and is in good
standing in each jurisdiction in which its ownership or
leasing of properties requires such qualification or the
conduct of its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect on the Company and the Subsidiaries as a
whole); and each Subsidiary has all necessary corporate or
partnership power and, to the knowledge of such counsel, all
material governmental authorizations, permits and approvals
required to own its properties and to conduct its business
as described in the Prospectus;
(iii) All the outstanding shares of capital stock or
partnership interests, as applicable, of each of the
Subsidiaries are validly issued and outstanding and are
owned by the Company of record and, to the best knowledge of
such counsel, (A) beneficially and (B) free and clear of all
liens, charges or encumbrances of any nature whatsoever;
and, to the knowledge of such counsel, neither the Company
nor any of the Subsidiaries has granted any outstanding
options, warrants or commitments with respect to any shares
of its capital stock or partnership interests, as
applicable, whether issued or unissued, except as otherwise
described in the Prospectus;
(iv) The Company has an authorized capitalization as
set forth in the Registration Statement and all the issued
shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-
assessable, are free of any preemptive rights, and were
issued and sold in compliance with all applicable federal
securities laws; the Common Stock of the Company has been
registered under the Exchange Act; the Shares being sold by
the Company have been duly and validly authorized and, when
duly countersigned by the Company's Transfer Agent and
Registrar and issued and delivered in accordance with the
provisions of the Registration Statement and this Agreement,
will be duly and validly issued, fully paid and
nonassessable; and the Shares conform to the
XXXXXXX XXXXX & ASSOCIATES, INC. Page 22
description of the Common Stock in the Prospectus; and the
Shares have been duly authorized for listing on the Nasdaq
National Market.
(v) Such counsel does not know of any litigation or
any governmental proceeding pending or threatened against
the Company or any of the Subsidiaries which would affect
the subject matter of this Agreement or is required to be
disclosed in the Prospectus which is not disclosed and
correctly summarized therein;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in
accordance with its terms, except as enforceability of the
same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equitable
principles and except as enforceability of those provisions
relating to indemnity may be limited by the federal
securities laws and principles of public policy;
(vii) The Company has full corporate power and
authority to execute, deliver and perform this Agreement,
and the execution, delivery and performance of this
Agreement, the consummation of the transactions herein
contemplated and the issue and sale of the Shares and the
compliance by the Company with all the provisions of this
Agreement will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon, any of the property or assets of
the Company or the Subsidiaries pursuant to, the terms of
any indenture, mortgage, deed of trust, loan agreement or
other material 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 is bound
or to which any of the property or assets of the Company or
any of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the Amended and
Restated Certificate of Incorporation or the Bylaws, in each
case as amended, of the Company, or any statute, or, to the
best of such counsel's knowledge, any order, rule or
regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the
Subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body is required
for the issue and sale of the Shares or the consummation of
the other transactions contemplated by this Agreement,
except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(ix) To the best of such counsel's knowledge, neither
the Company nor any of the Subsidiaries is currently in
breach of or in default under, any indenture, mortgage, deed
of trust, lease, bank loan or credit agreement or (in any
respect that is material in light of the financial condition
of the Company and the Subsidiaries
XXXXXXX XXXXX & ASSOCIATES, INC. Page 23
taken as a whole) any other agreement or instrument of which
such counsel has knowledge to which the Company or any of
the Subsidiaries is a party or by which any of them or any
of their property may be bound or affected;
(x) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Shares pursuant to the Company's
Amended and Restated Certificate of Incorporation or Bylaws,
in each case as amended, or any agreement or other
instrument known to such counsel; and no holders of
securities of the Company have rights to the registration
thereof under the Registration Statement or, if any such
holders have such rights, such holders have waived such
rights;
(xi) Such counsel has read all contracts referred to
or incorporated by reference in the Registration Statement
and the Prospectus and all other loan agreements and, to the
extent material, such contracts are fairly summarized as
disclosed therein, conform in all material respects to the
descriptions thereof contained therein, and are filed as
exhibits thereto or incorporated by reference therein, and
such counsel does not know of any contracts or other
documents required to be so summarized or disclosed, or so
filed or so incorporated by reference, which have not been
so summarized or disclosed, or so filed or so incorporated
by reference, and there are no statutes or regulations or
pending or threatened legal or governmental proceedings
required to be disclosed in the Prospectus which have not
been disclosed as required;
(xii) The Registration Statement has become effective
under the Act, the Prospectus has been filed in accordance
with Rule 424(b) of the rules and regulations of the
Commission under the Act, including the applicable time
periods set forth therein, or such filing is not required,
and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to
the knowledge of such counsel, contemplated under the Act,
and the Registration Statement, the Prospectus and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder; the documents incorporated
by reference in the Prospectus comply as to form in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder;
it being understood that such counsel need express no
opinion as to the financial statements or other financial
data contained or incorporated by reference in the
Registration Statement or the Prospectus.
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that
the Registration Statement contains any untrue statement of
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, not
misleading, or that the Prospectus contains any untrue statement
of material fact or omits to state a material fact required to be
stated therein
XXXXXXX XXXXX & ASSOCIATES, INC. Page 24
or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
In rendering their opinions set forth in Section 9(c) above,
such counsel may rely, to the extent deemed advisable by such
counsel, (a) upon certificates of state officials, (b) on opinions
of other counsel (provided, however, that you shall have received
a copy of each of such opinions which shall be dated the Closing
Date, addressed to you or otherwise authorizing you to rely
thereon; and that Gallop, Xxxxxxx & Xxxxxx, X.X. in its opinion to
you delivered pursuant to this subsection, shall state that such
counsel are satisfactory to them and Gallop, Xxxxxxx & Xxxxxx,
X.X. has no reason to believe that you and they are not entitled
to so rely), and (c) on officers' certificates as to factual
matters;
(d) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Xxxxx & Xxxxx,
L.L.P., counsel for the Underwriters, dated the Closing Date (and
the Additional Closing Date, if any), with respect to the issuance
and sale of the Firm Shares, the Registration Statement and other
related matters as you may reasonably request and the Company and
its counsel shall have furnished to your counsel such documents as
they may reasonably request for the purpose of enabling them to
pass upon such matters.
(e) You shall have received letters addressed to you and
dated the date hereof and the Closing Date (and the Additional
Closing Date, if any) from Ernst & Young LLP, independent
certified public accountants, substantially in the forms
heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission
at or prior to the Closing Date; (ii) there shall not have been
any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other
than borrowings under the Revolving Credit Facility in the
ordinary course of business) from that set forth or contemplated
in the Registration Statement or the Prospectus (or any amendment
or supplement thereto), or any development involving or which may
reasonably be expected to involve a potential future material
adverse change (present or potential future) in the condition
(financial or other), business, prospects, properties, net worth
or results of operations of the Company and the Subsidiaries,
taken as a whole; (iii) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (whether
or not in the ordinary course of business) that are material to
the Company and the Subsidiaries, taken as a whole, other than
those reflected in the Registration Statement or the Prospectus
(or any amendment or supplement thereto); and (iv) the
representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on
and as of the date hereof and on and as of the Closing Date (and
the Additional Closing Date, if any) as if made on and as of the
Closing Date (and the Additional Closing Date, if any), and you
shall have received a certificate, dated the Closing Date (and the
Additional Closing Date, if any) and signed by the chief executive
officer or president and the chief
XXXXXXX XXXXX & ASSOCIATES, INC. Page 25
financial officer or treasurer of the Company (or such other
officers as are acceptable to you) to the effect set forth in this
Section 9(f) and in Sections 9(b) and 9(h) hereof.
(g) The Company shall not have failed in any material
respect at or prior to the Closing Date (and the Additional
Closing Date, if any) to have performed or complied with any of-
its agreements herein contained and required to be performed or
complied with by it hereunder at or prior to the Closing Date (and
the Additional Closing Date, if any).
(h) The Company shall have furnished or caused to have
been furnished to you such further certificates and documents as
you shall have reasonably requested.
(i) At or prior to the Closing Date, you shall have
received the written commitment of each of the Company's
executive officers and directors not to directly or indirectly (i)
offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any
option, right or warrant for the sale of or otherwise dispose of
or transfer any shares of Common Stock or securities convertible
into or exchangeable or exercisable for shares of Common Stock,
whether now owned or acquired after the date of the Prospectus or
with respect to which the power of disposition is acquired after
the date of the Prospectus, or file any registration statement
under the Act with respect to any of the foregoing; or (ii) enter
into any swap or other agreement or any other agreement that
transfers, in whole or in part, directly or indirectly, the
economic consequences of ownership of shares of Common Stock
whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise; other
than as provided in such written commitment before the expiration
of 180 days from the Closing Date, without the prior written
consent of Xxxxxxx Xxxxx & Associates, Inc.
(j) At or prior to the effective date of the Registration
Statement, you shall have received a letter from the Corporate
Financing Department of the NASD confirming that such Department
has determined to raise no objections with respect to the fairness
or reasonableness of the underwriting terms and arrangements of
the offering contemplated hereby.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the
Additional Closing Date of the conditions set forth in this Section 9,
except that, if the Additional Closing Date is other than the Closing
Date, the certificates, opinions and letters referred to in
paragraphs (c) through (j) shall be dated as of the Additional Closing
Date and the opinions and letters called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Additional Shares.
SECTION 10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall
become effective upon the later of (a) the execution and delivery hereof
by the parties hereto, or (b) release of oral notification of the
effectiveness of the Registration Statement by the Commission.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 26
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder,
and the aggregate number of Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is
not more than one-tenth of the aggregate number of the Firm Shares, each
non-defaulting Underwriter shall be obligated, severally, in the
proportion which the number of Firm Shares set forth opposite its name
in Schedule I hereto bears to the aggregate number of Firm Shares set
forth opposite the names of all non-defaulting Underwriters or in such
other proportion as you may specify in the Agreement Among Underwriters,
to purchase the Firm Shares which such defaulting Underwriter or
Underwriters agreed, but failed or refused, to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares
and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 96 hours after such
default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case which
does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date, but in no
event for longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any
other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under
this Agreement.
SECTION 11. TERMINATION OF AGREEMENT. This Agreement shall be
subject to termination in your absolute discretion, without liability on
the part of any Underwriter to the Company by notice to the Company, if
prior to the Closing Date or the Additional Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the
case may be, (i) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq National Market shall
have been suspended or materially limited, (ii) trading of any
securities of the Company, including the Shares, on the Nasdaq National
Market shall have been suspended or materially limited, whether as the
result of a stop order by the Commission or otherwise, (iii) a general
moratorium on commercial banking activities in New York or Florida shall
have been declared by either federal or state authorities, (iv) there
shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political,
financial or economic conditions or other material event the effect of
which on the financial markets of the United States is such as to make
it, in your judgment, impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares, or (v) the Company
or any Subsidiary shall have, in the sole judgment of the
Representatives, 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 disputes or any legal or governmental proceeding, or
there shall have been any material adverse change (including, without
limitation, a material change in management or control of the Company)
in the condition (financial or otherwise), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole, except in each case as described in, or
contemplated by, the Prospectus (excluding any amendment or supplement
thereto). Notice of such cancellation shall be promptly given to the
Company and its counsel by facsimile or telephone and shall be
subsequently confirmed by letter.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 27
SECTION 12. INFORMATION FURNISHED BY THE UNDERWRITERS. The
Company acknowledges that the statements set forth in the last paragraph
on the front cover page of the Prospectus, the information set forth in
the first table on page 46 of the Prospectus under the caption
"Underwriting" and the information set forth in the fifth, seventh,
eighth and ninth paragraphs of the Prospectus under the caption
"Underwriting," constitute all the information furnished by or on behalf
of the Underwriters through you or on your behalf as such information is
referred to in Sections 6(b) and 8 hereof.
SECTION 13. MISCELLANEOUS. Except as otherwise provided in
Sections 5, 10 and 11 hereof, notice given pursuant to any of the
provisions of this Agreement shall be in writing and shall be delivered
(i) to the Company:
Maverick Tube Corporation
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, President
Facsimile: (000) 000-0000
with copy to:
Gallop, Xxxxxxx & Xxxxxx, X.X.
1600 Interco Corporate Tower
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(ii) to the Underwriters:
Xxxxxxx Xxxxx & Associates, Inc.
0000 Xxx Xxxxxx, #000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx, Senior Vice President
Facsimile: (000) 000-0000
and to:
Xxxxxx Xxxxxx & Company, Inc.
00 X. Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Managing Director
Facsimile: (000) 000-0000
XXXXXXX XXXXX & ASSOCIATES, INC. Page 28
with copy to:
Xxxxx & Xxxxx, L.L.P.
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
This Agreement has been and is solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the
other controlling persons referred to in Section 8 hereof, and their
respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither of the terms "successor" and "successors and
assigns" as used in this Agreement shall include a purchaser from you of
any of the Shares in his status as such purchaser.
SECTION 14. APPLICABLE LAW; COUNTERPARTS. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO CHOICE OF LAW PRINCIPLES THEREUNDER.
THIS AGREEMENT MAY BE SIGNED IN VARIOUS COUNTERPARTS WHICH TOGETHER
SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. THIS AGREEMENT SHALL BE
EFFECTIVE WHEN, BUT ONLY WHEN, AT LEAST ONE COUNTERPART HEREOF SHALL
HAVE BEEN EXECUTED ON BEHALF OF EACH PARTY HERETO.
XXXXXXX XXXXX & ASSOCIATES, INC. Page 29
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
MAVERICK TUBE CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED as of the date first above
mentioned, on behalf of itself and
the other several Underwriters named
in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXX XXXXXX & COMPANY, INC.
By: XXXXXXX XXXXX & ASSOCIATES, INC.
By:
---------------------------------
Authorized Representative
XXXXXXX XXXXX & ASSOCIATES, INC. Page 30
SCHEDULE I
NUMBER OF FIRM
NAME SHARES
------------------------------------------------ ------------------
Xxxxxxx Xxxxx & Associates, Inc. _________
Xxxxxx Xxxxxx & Company, Inc. _________
TOTAL =========
XXXXXXX XXXXX & ASSOCIATES, INC. Page 31
SCHEDULE II
Maverick Investment Corporation, a Delaware corporation
Maverick Tube, L.P., a Delaware limited partnership
Maverick Tube International, Inc., a Barbados corporation
