EXHIBIT 1
MAVERICK TUBE CORPORATION
5,000,000 Shares
Common Stock
UNDERWRITING AGREEMENT
May 16, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
as Representative of the Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Maverick Tube Corporation, a Delaware corporation (the "Company"),
hereby confirms its agreement with the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representative (in such capacity, the "Representative") as set forth below:
1. Shares. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the Underwriters 5,000,000 shares (the
"Firm Shares") of the Company's common stock, par value $.01 per share (with
associated preferred stock purchase rights) (the "Common Stock"). The Company
also proposes to issue and sell to the Underwriters, for the sole purpose of
covering over-allotments in connection with the sale of Firm Shares, not more
than 750,000 additional shares of Common Stock at the option of the Underwriters
as provided in Section 3 of this Agreement. Any and all shares of Common Stock
to be purchased by the Underwriters pursuant to this option are referred to
herein as the "Option Shares," and the Firm Shares and any Option Shares are
collectively referred to herein as the "Shares." The Shares are more fully
described in the Registration Statement referred to below.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-61292), and one amendment thereto, for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of up to
$250,000,000 of securities (including the Shares), which registration
statement, as so amended (including post-effective amendments), has
been declared effective by the Commission and copies of which have
heretofore been delivered or made available to the Underwriters. The
registration statement, as amended at the time it became effective,
including the exhibits and information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to
Rule 430A or 434(d) under the Securities Act, including the Prospectus
(hereinafter defined), is hereinafter referred to as the "Registration
Statement." If the Company has filed, or is required pursuant to the
terms hereof to file, a registration statement pursuant to Rule 462(b)
under the Securities Act registering additional shares of Common Stock
(a "Rule
462(b) Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462(b) Registration Statement. Other than a Rule
462(b) Registration Statement, which becomes effective upon filing, no
other document with respect to the Registration Statement has
heretofore been filed with the Commission. No stop order suspending the
effectiveness of either the Registration Statement or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission. The Company, if required by the rules and
regulations of the Commission (together, the "Rules and Regulations"),
proposes to file the Prospectus (hereinafter defined) with the
Commission pursuant to Rule 424(b) of the Rules and Regulations. The
Prospectus, in the form in which it is to be filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, or, if the
Prospectus is not to be filed with the Commission pursuant to Rule
424(b), the Prospectus in the form included as part of the Registration
Statement at the time the Registration Statement became effective, is
hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering and
sale of the Shares which differs from the Prospectus (whether or not
such revised prospectus or prospectus supplement is required to be
filed by the Company pursuant to Rule 424(b) of the Rules and
Regulations), the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after
the time it is first provided to the Underwriters for such use. Any
preliminary prospectus or prospectus subject to completion included in
the Registration Statement or filed with the Commission pursuant to
Rule 424 under the Securities Act is hereafter called a "Preliminary
Prospectus." Any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") on or before the effective
date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include (i) the filing
of any document under the Exchange Act after the effective date of the
Registration Statement, as of the date of such Preliminary Prospectus
or as of the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so filed.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when
any supplement to or amendment of the Prospectus is filed with the
Commission, when any document filed under the Exchange Act was or is
filed and at the Closing Date and any Option Closing Date (as
hereinafter respectively defined), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto,
including all documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission,
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complied or will comply in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations and did
not and will not contain an untrue statement of a material fact and did
not and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case
of the Prospectus or any related Preliminary Prospectus in light of the
circumstances under which they were made, not misleading. When any
related Preliminary Prospectus was first filed with the Commission
(whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule
424(a) of the Rules and Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such
Preliminary Prospectus and any amendments thereof and supplements
thereto complied in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations and the
Exchange Act and the respective rules and regulations thereunder and
did not contain an untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and
warranty is made in this subsection (b), however, with respect to any
information contained in or omitted from the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information about the Underwriters furnished in writing
to the Company by any Underwriter through the Representative
specifically for use therein. If Rule 434 is used, the Company will
comply with the requirements of Rule 434.
(c) The Company and all corporations, limited liability
companies, partnerships and joint ventures (the "Subsidiaries") in
which the Company has a direct or indirect majority equity interest and
which would be required to be listed on Exhibit 21 to an Annual Report
on Form 10-K of the Company if such report were to be filed with the
Commission at the time of the execution and delivery of this Agreement
have been duly organized and are validly existing as entities in good
standing under the laws of their respective jurisdictions of
organization and are duly qualified to transact business as foreign
entities and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification and shall have all power and authority necessary to own
or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to do so or qualify or
be in good standing would not have a material adverse effect on the
business, financial condition or results of operations of the Company
and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
(d) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. No holders of outstanding
shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Shares, and no
holder of securities of the Company has any right which has not been
fully exercised or waived to require the Company to register the offer
or sale of any securities owned by such holder under the Securities Act
in the public offering contemplated by this Agreement. The Firm Shares
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and the Option Shares have been duly authorized and at the Closing Date
or the related Option Closing Date (as the case may be), after payment
therefor in accordance herewith, will be validly issued, fully paid and
nonassessable.
(e) The issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and such shares are owned of record and
beneficially by the Company, or another Subsidiary, free and clear of
any security interests, liens, encumbrances, equities or claims.
(f) None of the operating Subsidiaries, other than Maverick
Tube, L.P., Prudential Steel Ltd. and Precision Tube Holding
Technology, L.P., is a "significant subsidiary" as such term is defined
in Rule 405 under the Securities Act.
(g) The Shares are listed on the New York Stock Exchange (the
"NYSE"), or will be approved for listing, subject to notice of
issuance.
(h) Except as described or specifically referred to in the
Prospectus and except for options granted under the Company's employee
stock option, stock bonus or other stock plans or arrangements in
effect as of the date hereof and described or incorporated by reference
in the Prospectus (the "Company Stock Plans"), there are not
outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any Subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any Subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(i) The historical consolidated financial statements and
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable,
and fairly present the financial position of the Company and its
consolidated subsidiaries and the results of operations and the cash
flows of the Company and its consolidated subsidiaries at the
respective dates and for the respective periods to which they apply.
Such financial statements and schedules have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved (except as otherwise noted
therein). No other financial statements or schedules are required to be
included in the Registration Statement.
(j) Ernst & Young, LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their reports with respect to the audited consolidated
financial statements and schedules included or incorporated by
reference in the Registration Statement and the Prospectus, are
independent public accountants within the meaning of the Securities
Act, the Exchange Act and the related published rules and regulations
thereunder.
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(k) The Company has full corporate power to enter into this
Agreement and to carry out all of the terms and provisions hereof to be
carried out by it. The execution and delivery of this Agreement have
been duly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and is the valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as rights to indemnity and contribution may be
limited under applicable law and except as limited by bankruptcy,
insolvency or other laws of general application relating to or
affecting creditors' rights generally and general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(l) The compliance by the Company with the provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained, such as may be required under state
securities or blue sky laws and such as may be required (and shall be
obtained as provided in this Agreement) under the Securities Act, or
(ii) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of their respective
properties are bound, or the charter documents or by-laws of the
Company or any of its Subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
Subsidiaries except for such conflicts, defaults, violations, creations
or impositions that would not affect the consummation of the Agreement,
the issuance of the Shares or have a Material Adverse Effect.
(m) Subsequent to the respective dates as of which information
is given or incorporated by reference in the Registration Statement and
the Prospectus, there has not been (i) any material adverse change, or
any development which, in the Company's reasonable judgment, is likely
to cause a material adverse change, in the business, properties,
management, net worth, or assets described or referred to in the
Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company and its
Subsidiaries taken as a whole, (ii) any transaction which is material
to the Company or its Subsidiaries, except transactions in the ordinary
course of business, (iii) any obligation, direct or contingent, which
is material to the Company and its Subsidiaries taken as a whole,
incurred by the Company or its Subsidiaries, except obligations
incurred in the ordinary course of business, (iv) any change in the
capital stock or out-standing indebtedness of the Company or its
Subsidiaries or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company. Neither the Company
nor the Subsidiaries has any material contingent obligation that is not
disclosed or incorporated by reference in the Registration Statement.
(n) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company
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to facilitate the sale or resale of the Shares or (ii) since the filing
of the Registration Statement (A) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Shares or (B)
paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(o) Subsequent to the respective dates as of which information
is given, or incorporated by reference, in the Registration Statement
and the Prospectus: (1) the Company and its subsidiaries, prior to the
Closing Date or the related Option Closing Date (if any), have not
entered, and will not enter, into any transaction not in the ordinary
course of business that is material to the Company and its subsidiaries
taken as a whole; (2) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (3)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated subsidiaries
or any default under the terms of any class of capital stock of the
Company or any outstanding debt obligations, except in each case as
described in or contemplated by the Prospectus.
(p) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act"), and is not subject to regulation as an investment company under
the 1940 Act. This transaction will not cause the Company to become an
investment company subject to registration under the 1940 Act.
(q) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Shares, will not distribute any offering material in connection with
the offering and sale of the Shares other than the Registration
Statement or any amendment thereto, or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the
Securities Act.
(r) Each certificate signed by any officer of the Company and
delivered to the Underwriters pursuant to this Agreement or in
connection with the payment of the purchase price and delivery of the
certificates for the Shares shall be deemed to be a representation and
warranty by the Company to the Underwriters as to the matters covered
thereby.
(s) No labor dispute with the employees of the Company or any
of the Subsidiaries exists or is threatened or imminent that could
result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(t) The Company and the Subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by
them in connection with their respective businesses, and neither the
Company nor any such Subsidiary has received any notice of infringement
of or conflict with asserted rights of any third party with respect to
any of the foregoing which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding,
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would result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(u) The Company and each of the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
Subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such Subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not cause a Material Adverse Effect,
except as described in or contemplated by the Prospectus.
(v) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock, from repaying to
the Company any loans or advances to such Subsidiary from the Company
or from transferring any of such Subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in
or contemplated by the Prospectus.
(w) The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus.
(x) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as described in or
contemplated by the Prospectus.
(y) Neither the Company nor any of the Subsidiaries is in
violation of any federal, state, local or foreign law, rule, regulation
or order relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials, and the
Company and the Subsidiaries have received all permits, licenses or
other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and each such
Subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the
aggregate, result in a Material Adverse Effect, except as described in
or
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contemplated by the Prospectus. Neither the Company nor any of the
Subsidiaries has received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants,
except in any such case for any such failure to comply, or failure to
receive required permits, licenses or approvals, or liability as would
not, individually or in the aggregate, have a Material Adverse Effect.
(z) There are no holders of securities of the Company, who, by
reason of the filing of the Registration Statement or the transactions
contemplated hereby, have the right (and have not waived such right) to
request the Company to register under the Securities Act, or to include
in the Registration Statement, securities held by them.
(aa) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(bb) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries or any of their
respective properties is bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company and its subsidiaries.
(cc) The Company and each of the Subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by
the Company or such Subsidiary, and any real property and buildings
held under lease by the Company or any such Subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or such Subsidiary,
in each case except as described or incorporated by reference in or
contemplated by the Prospectus.
(dd) Except as described in the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its Subsidiaries is
or, to the best knowledge of the Company, may be a party or to which
any property of the Company or any of its Subsidiaries is or, to the
best knowledge of the Company, may be the subject that, individually or
in the aggregate, if determined
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adversely to the Company or any of its Subsidiaries, could reasonably
be expected to have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement; no such investigations, actions, suits or
proceedings are threatened or, to the best knowledge of the Company,
contemplated by any governmental authority or regulatory authority or
threatened by others; and (i) there are no current pending legal,
governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the Prospectus
that are not so described and (ii) there are no statutes, regulations
or contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or described
in the Registration Statement or the Prospectus that are not so filed
or described.
3. Purchase, Sale and Delivery of the Shares.
(a) (i) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters, severally and not jointly, agree to
purchase from the Company, the number of Shares set forth opposite the
respective names of the Underwriters in Column (1) of Schedule I hereto
at a purchase price of $13.92 per share of Common Stock. The delivery
of and payment for the Firm Shares shall be made at the offices of
Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ at 9:00 a.m. on May 22, 2002, or at such other place, time or
date as the Representative and the Company may agree upon or as the
Representative may determine, such time and date of delivery against
payment being herein referred to as the "Closing Date."
(b) In addition, on the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Company hereby grants
an option to the Underwriters, severally and not jointly, which may be
exercised in whole or in part from time to time during the 30-day
period following the date of this Agreement, to purchase up to an
aggregate of 750,000 shares of Common Stock (the "Option Shares") from
the Company at the purchase price per share to be paid by the
Underwriters for the Firm Shares. The option granted hereunder is for
use by the Underwriters solely in covering any over-allotments in
connection with the sale and distribution of the Firm Shares. The
option granted hereunder may be exercised from time to time upon notice
by the Representative to the Company. The time and date of delivery of
Option Shares, if subsequent to the Closing Date, shall be called an
"Option Closing Date" (each such date, the "Option Closing Date") and
shall be determined by the Representative and shall not be earlier than
two nor later than five full business days after delivery of such
notice of exercise. The Underwriters may cancel the option at any time
prior to its expiration by giving written notice of such cancellation
to the Company.
(c) Payment for the Firm Shares shall be made at the Closing
Date (and, if applicable, payment for the Option Shares shall be made
at the Option Closing Date) by wire transfer in immediately
available-funds to the order of the Company. The Company shall deliver,
or cause to be delivered a credit representing the Firm Shares or the
Option
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Shares, as the case may be, to an account or accounts at The Depository
Trust Company as designated by the Underwriters for the accounts of the
Underwriters, at the Closing Date or the Option Closing Date, as the
case may be, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
thereof. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the
obligations of the Underwriters.
(d) Not later than 12:00 noon on the first business day
following the date of this Agreement, the Company shall deliver or
cause to be delivered copies of the Prospectus in such quantities and
at such places, as the Underwriters shall request.
4. Offering by the Underwriters. Upon authorization by the Company of
the release of the Shares, the Underwriters propose to offer the Shares for sale
to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the Prospectus
and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rule 424(b) under the
Securities Act. During any time when a prospectus relating to the
Shares is, in the opinion of counsel for the Underwriters, required to
be delivered under the Securities Act, the Company (i) will comply with
all requirements imposed upon it by the Securities Act and the Exchange
Act and the respective rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales
of or dealings in the Shares in accordance with the provisions hereof
and of the Prospectus, as then amended or supplemented, and (ii) will
not file with the Commission the Prospectus or any amendment or
supplement to such prospectus or any amendment to the Registration
Statement or any Rule 462(b) Registration Statement of which the
Representative shall not previously have been advised and furnished
with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Representative shall not have given
its consent; provided, that the foregoing provision of this clause (ii)
does not prohibit the Company from making filings with the Commission
of statements and reports that it reasonably believes are required to
be made under the Exchange Act. The Company will prepare and file with
the Commission, in accordance with the rules and regulations of the
Commission, promptly upon request by the Representative or counsel for
the Underwriters, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or
advisable in connection with the distribution of the Shares by the
Underwriters, and will use its best efforts to cause any such amendment
to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Underwriters, promptly after receiving notice thereof, of the time when
the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement
thereto has
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been filed and will provide evidence satisfactory to the Representative
of each such filing or effectiveness.
(b) The Company will advise the Representative, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto or any order
preventing or suspending the use of the Prospectus or any amendment or
supplement thereto, (ii) the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or
(iv) any request made by the Commission for amending the Registration
Statement or any Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(c) If, at any time prior to the final date when a prospectus
relating to the Shares is, in the opinion of counsel for the
Underwriters, required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if for any other reason it is necessary at any time
to amend or supplement, the Prospectus to comply with the Securities
Act, the Exchange Act or the respective rules or regulations of the
Commission thereunder, the Company will promptly notify the
Representative thereof and, subject to Section 5(a) hereof, will
prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement
to the Prospectus that corrects such statement or omission or effects
such compliance.
(d) The Company will, without charge, provide (i) to each
Underwriter and to counsel for the Underwriters a conformed copy of the
Registration Statement and each amendment thereto (in each case
including exhibits thereto) or any Rule 462(b) Registration Statement
and (ii) as soon after the execution and delivery of this Agreement as
is practicable and thereafter from time to time for such period as in
the reasonable opinion of counsel for the Underwriters a prospectus
relating to the Shares is required by the Securities Act to be
delivered in connection with sales by the Underwriters or a dealer, as
many copies of the Prospectus and any amendment or supplement thereto
as the Representative may reasonably request.
(e) The Company, as soon as practicable when required, will
make generally available to its securityholders and to the
Representative a consolidated earnings statement of the Company and its
Subsidiaries that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
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(f) The Company will use reasonable commercial efforts to
qualify the Shares for offering and sale under the securities or blue
sky laws of such jurisdictions as the Representative may designate and
will continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Shares, provided,
however, that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction.
(g) The Company will apply the net proceeds from the sale of
the Shares as set forth under "Use of Proceeds" in the Prospectus.
(h) For a period of 90 days after the date of the Prospectus,
the Company will not (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into
any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or
otherwise, without the prior written consent of the Representative,
other than (A) the Shares to be sold hereunder, (B) any shares of
Common Stock of the Company issued upon the exercise of options granted
under existing employee stock option plans, (C) pursuant to the terms
of convertible or exchangeable securities of the Company outstanding on
the date hereof, or (D) (I) in connection with any acquisition
transaction or exchange offer announced by the Company prior to the
date hereof or (II) relating to the proposed purchase by the Company of
the North Star Steel Tubular Division.
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (ii) (A) sell, bid for, purchase,
or pay anyone any compensation for soliciting purchases of, the Shares
or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(j) The Company, during the period when the Prospectus is, in
the opinion of counsel for the Underwriters, required to be delivered
under the Securities Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14, or
15 of the Exchange Act within the periods required by the Exchange Act
and the rules and regulations thereunder.
(k) The Company will use its best efforts to cause its Common
Stock to continue to be listed on the NYSE, or in lieu thereof, on the
American Stock Exchange or the NASDAQ National Market System.
6. Expenses. The Company will pay, and hold the Underwriters harmless
from, the following costs and expenses incident to the performance of its
obligations under this
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Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof: (i) the printing
or other production of documents with respect to the transactions, including any
costs of printing the registration statement originally filed with respect to
the Shares and any amendment thereto, any Rule 462(b) Registration Statement,
the Prospectus and any amendment or supplement thereto, this Agreement and any
blue sky memoranda, (ii) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees, (v) the qualification of the Shares under state
securities and blue sky laws, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters relating thereto, (vi) the filing
fees of the Commission (and the National Association of Securities Dealers,
Inc.) relating to the Shares, and (vii) the listing of the Shares on the NYSE.
If the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7 hereof
is not satisfied, because this Agreement is terminated pursuant to Section 11
hereof or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including fees and disbursements of counsel)
that shall have been incurred by it in connection with the proposed purchase and
sale of the Shares. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares shall be subject, in the
Representative's sole discretion, to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company of its covenants and agreements hereunder and to
the following additional conditions:
(a) The Registration Statement shall have become effective
prior to the date hereof and all filings required by Rules 424(b), 430A
and 462 under the Securities Act shall have been timely made; no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any document
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened or, to the knowledge of the Company or the
Representative, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement,
or the Prospectus or otherwise).
(b) The Underwriters shall have received an opinion, dated the
Closing Date, of Gallop, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇., counsel for the
Company, to the effect that:
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(i) the Company and each of the Subsidiaries have been duly
incorporated, or in the case of Maverick Tube, L.P. and Precision Tube
Technology, L.P. (together, the "Partnerships"), duly formed, are
validly existing as corporations, or in the case of each of the
Partnerships, as limited partnerships, in good standing under the laws
of their respective jurisdictions of incorporation, or in the case f
each of the Partnerships, jurisdictions of formation, and are duly
qualified to transact business as foreign corporations, or in the case
of each of the Partnerships, as limited partnerships, and are in good
standing under the laws of all other jurisdictions where the ownership
or leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company and the Subsidiaries, taken as a whole;
(ii) the Company and each of the Subsidiaries have corporate
power, or in the case of the Partnerships, limited partnership power,
to own or lease their respective properties and conduct their
respective businesses as described in the Registration Statement and
the Prospectus, and the Company has corporate power to enter into this
Agreement and to carry out all the terms and provisions hereof and
thereof to be carried out by it;
(iii) the Company has authorized capital stock as set forth in
the Prospectus and the description of the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectus; the Firm Shares have been duly authorized and
validly issued and are fully paid and nonassessable; no holders of
outstanding shares of capital stock of the Company are entitled as such
to any preemptive or other rights to subscribe for any of the Firm
Shares under the Delaware General Corporation Law or the Company's
Certificate of Incorporation or by-laws;
(iv) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Company and
this Agreement has been duly executed and delivered by the Company;
(v) the compliance by the Company with the provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not conflict with or result in a breach or violation of
any of the terms and provisions of the charter documents or by-laws of
the Company;
(vi) to the best knowledge of such counsel, no legal or
governmental proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any
of the Subsidiaries is subject that are required to be described in the
Registration Statement and are not described therein, and, no such
proceedings have been threatened against the Company or any of the
Subsidiaries or with respect to any of their respective properties;
and, to the best knowledge of such counsel, no contract or other
document is required to be described in the Registration Statement, the
Prospectus
-14-
or to be filed as an exhibit to the Registration Statement that is not
described therein or filed as required;
(vii) the issuance, offering and sale of the Firm Shares to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument, known to such counsel, to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or any of their respective properties are bound, or
the charter documents or by-laws of the Company or any of the
Subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator known to such counsel and applicable to the Company or any
of the Subsidiaries;
(viii) the Registration Statement and the Prospectus
(excluding the financial statements and other financial or statistical
information contained or incorporated by reference therein and any
information furnished by the Underwriters, as to which such counsel
need express no opinion) comply on their face as to form in all
material respects with the applicable requirements of the Securities
Act and the respective rules and regulations of the Commission
thereunder and, to the knowledge of such counsel, the Registration
Statement is effective under the Securities Act, and no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or is
threatened, pending or contemplated; and
(ix) this Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting creditors' and contracting
parties' rights generally and may be subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Such counsel shall also state that it has participated in telephone calls and
exchanges of information and comments with officers and other representatives of
the Company and representatives of the independent public accountants of the
Company, with respect to the contents of the Registration Statement and the
Prospectus. Although such counsel need not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and need not make any
representation that it has independently verified the accuracy, completeness or
fairness of such statements, such counsel shall state that on the basis of the
foregoing and the information disclosed to it (i) no facts came to its attention
that lead it to believe that the Registration
-15-
Statement, as of the time it was declared effective under the Securities Act,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading (it being understood that such counsel need not express
any view with respect to the financial statements, including the notes and
schedules thereto and the auditor's report thereon, or any other information of
a financial or accounting nature or statistical data set forth or referred to in
the Registration Statement or any document incorporated therein by reference or
any exhibits thereto), and (ii) no facts have come to such counsel's attention
that lead it to believe that the Prospectus, as of the time it was filed with
the Commission, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need not
express any view with respect to the financial statements including the notes
and schedules thereto and the auditor's report thereon, or any other information
of a financial or accounting nature or statistical data set forth or referred to
in the Prospectus or any document incorporated therein by reference).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. References to the Registration
Statement and the Prospectus in this Section 7(b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Representative shall have received an opinion, dated
the Closing Date, of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the
Underwriters, with respect to the sale of the Firm Shares and such
other related matters as the Representative may reasonably require, and
the Company shall have furnished to such counsel such documents as they
may reasonably request for the purpose of enabling them to pass upon
such matters.
(d) The Representative shall have received from Ernst & Young,
LLP a letter or letters dated on the date of this Agreement and on the
Closing Date, in form and substance satisfactory to the Representative,
to the effect that:
(i) they are independent accountants with respect to
the Company and its consolidated subsidiaries within the
meaning of the Securities Act, and the Exchange Act and the
applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and
included in the Registration Statement and the Prospectus
comply in form in all material respects with the applicable
accounting requirements of the Securities Act, the Exchange
Act and the related published rules and regulations
thereunder;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated condensed financial
statements of the Company and its consolidated subsidiaries,
carrying out certain specified procedures (which do not
constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments
-16-
set forth in this Section 7(d)(iii), a reading of the minute
books of the stockholders, the board of directors and any
committees thereof of the Company and each of its consolidated
subsidiaries, and inquiries of certain officials of the
Company and its consolidated subsidiaries who have
responsibility for financial and accounting matters, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated
financial statements of the Company
and its consolidated subsidiaries
included or incorporated by
reference in the Registration
Statement and the Prospectus do not
comply in form in all material
respects with the applicable
accounting requirements of the
Securities Act, the Exchange Act and
the related published rules and
regulations thereunder, or are not
in conformity with generally
accepted accounting principles
applied on a basis substantially
consistent with that of the audited
consolidated financial statements
included in the Registration
Statement and the Prospectus; and
(B) at a specific date not more than
five business days prior to the date
of such letter, there were any
changes in the capital stock or
long-term debt of the Company and
its consolidated subsidiaries or any
decreases in net current assets or
stockholders' equity of the Company
and its consolidated subsidiaries,
in each case compared with amounts
shown on the December 31, 2001
audited consolidated balance sheet
incorporated by reference in the
Registration Statement and the
Prospectus; or for the period from
January 1, 2002, to such specified
date, there were any decreases, as
compared with the corresponding
period in the preceding year and
with a period of corresponding
length ending on December 31, 2001,
in net revenues, net income before
income taxes or total or per share
amounts of net income of the Company
and its consolidated subsidiaries,
except in all instances for changes,
decreases or increases set forth in
such letter.
In the event that the letter referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letter shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representative deems such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representative, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof.
-17-
References to the Registration Statement and the Prospectus in this
Section 7(d) with respect to the letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Representative shall have received a certificate,
dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect
that:
(i) the representations and warranties of the Company
in this Agreement are true and correct as if made on and as of
the Closing Date; the Registration Statement, as amended as of
the Closing Date, does not include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Closing Date,
does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and the Company has
performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment
thereto and no order directed at any document incorporated by
reference in the Registration Statement, the Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto has been issued, and no proceedings for that purpose
have been instituted or threatened or, to the best of the
Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement, the
Preliminary Prospectus and the Prospectus, neither the Company
nor any of its Subsidiaries has sustained any loss that is
material to the Company and its Subsidiaries taken as a whole
or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has not
been any material adverse change, or any development involving
a prospective material adverse change, in the condition
(financial or otherwise), management, net worth or results of
operations of the Company and its Subsidiaries taken as a
whole, except in each case as described in or contemplated by
the Prospectus.
Such officers' certificate may state that it is being delivered by each officer
on behalf of the Company and no personal liability shall attach to the
individual executing the certificate absent fraudulent misrepresentation.
(f) Subsequent to the execution and delivery of this
Agreement, neither the Company nor any of its Subsidiaries has
sustained any loss that is material to the Company and its Subsidiaries
taken as a whole or interference with their respective
-18-
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been
any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, net worth or results of operations of the Company and its
Subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus, the effect of which in the judgment of
the Representative makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Firm Shares on the Closing
Date on the terms and in the manner contemplated by this Agreement and
the Prospectus.
(g) The Representative shall have received the undertaking of
each executive officer and director of the Company not to engage in any
of the aforementioned transactions set forth in Section 5(h) of this
Agreement on their own behalf.
(h) The Representative and counsel for the Underwriters shall
have received such documentation as may be necessary to deliver the
Shares to the Underwriters in a form satisfactory to the Representative
and counsel for the Underwriters.
(i) Prior to the commencement of the offering of the Shares,
the Shares shall have been approved for listing on the NYSE, subject to
official notice of issuance.
(j) On or before the Closing Date, the Representative and
counsel for the Underwriters shall have received such further
certificates, documents or other information as they may have
reasonably requested from the Company.
(k) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating
accorded any debt securities or preferred stock of or guaranteed by the
Company or any of its Subsidiaries by any "nationally recognized
statistical rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act and
(ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect
to, its rating of any debt securities or preferred stock of or
guaranteed by the Company or any of its Subsidiaries (other than an
announcement with positive implications of a possible upgrading).
(l) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that
would, as of the Closing Date, prevent the issuance or sale of the Firm
Shares; and no injunction or order of any federal, state or foreign
court shall have been issued that would, as of the Closing Date,
prevent the issuance or sale of the Firm Shares.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representative and
counsel for the Underwriters. The Company shall furnish to the
-19-
Representative such conformed copies of such opinions, certificates, letters and
documents in such quantities as the Representative and counsel for the
Underwriters shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
any Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the Firm Shares and the Closing Date shall be deemed to refer to such Option
Shares and the related Option Closing Date, respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person
may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement
or any amendment thereto, the Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or
(iii) any inaccuracy in or breach of the
representations and warranties of the Company contained herein
or any failure of the Company to perform its obligations
hereunder or under law;
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or any
amendment thereto, the Prospectus or any amendment or supplement
thereto, in reliance upon and in conformity with written information
concerning an Underwriter furnished to the Company by such Underwriter
through the Representative specifically for use therein; and provided,
further, that the Company will not be liable to such Underwriter or any
person controlling such Underwriter with respect to any such untrue
statement or omission
-20-
made in any Prospectus that is corrected in any amendment or supplement
thereto if the person asserting any such loss, claim, damage or
liability purchased Shares from such Underwriter but was not sent or
given a copy of the Prospectus (as amended or supplemented), other than
the documents incorporated by reference therein, at or prior to the
written confirmation of the sale of such Shares to such person in any
case where such delivery of the Prospectus as amended or supplemented
is required by the Securities Act, unless such failure to deliver the
Prospectus (as amended or supplemented) was a result of noncompliance
by the Company with Section 5 of this Agreement. This indemnity
agreement will be in addition to any liability that the Company may
otherwise have. The Company will not, without the prior written consent
of such Underwriter, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder
(whether or not the such Underwriter or any person who controls such
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes
an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim,
action, suit or proceeding. This indemnity agreement will be in
addition to any liability that the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of
its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company or any such
director, officer, or controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement
or any amendment thereto, the Prospectus or any amendment or supplement
thereto, (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or
any amendment thereto, the Prospectus or any amendment or supplement
thereto, necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by such
Underwriter through the Representative specifically for use therein;
and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or any action in respect thereof.
This indemnity agreement will be in addition to any liability that such
Underwriter may otherwise have.
-21-
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8
except to the extent (but only to the extent) that failure to give
notice shall materially prejudice such party's rights. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to the indemnified
party and/or other indemnified parties which are different from or
additional to those available to the indemnifying party and would make
the representation of all such parties inappropriate, the indemnifying
party shall not have the right to direct the defense of such action on
behalf of such indemnified party or parties and such indemnified party
or parties shall have the right to select separate counsel to defend
such action on behalf of such indemnified party or parties. After
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under
this Section 8(c) for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i)
the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances,
designated by the Underwriters in the case of Section 8(b),
representing the indemnified parties under such Section 8(b) who are
parties to such action or actions) or (ii) the indemnifying party does
not promptly retain counsel satisfactory to the indemnified party or
(iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof), each indemnifying party, in order to provide for just
and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits
-22-
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other from the offering of the
Shares or (ii) if the allocation provided by the foregoing clause (i)
is not permitted by applicable law, not only such relative benefits but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party or parties on the other in connection
with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting discounts but before deducting expenses) received by the
Company bear to the total profits received by the Underwriters. ("Total
profits" are defined as the difference between the total price at which
the Underwriters sell the Shares to the public and the total price that
the Underwriters pay to purchase the Shares from the Company). The
relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the
Underwriters, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Underwriters agree that it would not
be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that
does not take into account the equitable considerations referred to
above in this Section 8(d). Notwithstanding any other provision of this
Section 8, no Underwriter shall be obligated to make contributions
hereunder in excess of any amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay in respect of the same or any
substantially similar claim. The Underwriters' obligations to
contribute hereunder are several in proportion to their respective
underwriting obligations and not joint, and contributions among
Underwriters shall be governed by the provisions of the ▇.▇. ▇▇▇▇▇▇
Securities Inc. Master Agreement Among Underwriters. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8(d), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Shares or Option Shares hereunder and the
aggregate number of such Shares that such defaulting Underwriter or Underwriters
agreed but failed to purchase is ten percent or less of the aggregate number of
Firm Shares or Option Shares to be purchased by all of the Underwriters
-23-
at such time hereunder, the other Underwriters may make arrangements
satisfactory to the Representative for the purchase of such Shares by other
persons (who may include one or more of the non-defaulting Underwriters,
including the Representative), but if no such arrangements are made by the
Closing Date or the related Option Closing Date, as the case may be, the other
Underwriters shall be obligated severally in proportion to their respective
commitments hereunder to purchase the Firm Shares or Option Shares that such
defaulting Underwriter or Underwriters agreed but failed to purchase. If one or
more Underwriters so default with respect to an aggregate number of Shares that
is more than ten percent of the aggregate number of Firm Shares or Option
Shares, as the case may be, to be purchased by all of the Underwriters at such
time hereunder, and if arrangements satisfactory to the Representative are not
made within 36 hours after such default for the purchase by other persons (who
may include one or more of the non-defaulting Underwriters, including the
Representative) of the Shares with respect to which such default occurs, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company other than as provided in Section 10 hereof. In the
event of any default by one or more Underwriters as described in this Section 9,
the Representative shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 4
hereof for not more than seven business days in order that any necessary changes
may be made in the arrangements or documents for the purchase and delivery of
the Firm Shares or Option Shares, as the case may be. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers, and
the Underwriters set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers or directors, any Underwriter or any controlling person referred to
in Section 8 hereof and (ii) delivery of and payment for the Shares. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6 and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the Firm
Shares or any Option Shares in the sole discretion of the
Representative by notice to the Company given prior to the Closing Date
or Option Closing Date, as the case may be, in the event that the
Company shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date or Option Closing Date, as the case may be:
(i) the Company and the Subsidiaries, taken as a
whole, shall have, in the sole judgment of the Representative,
sustained any material loss or interference with their
respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or
governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective
material adverse change (including without limitation a change
in
-24-
management or control of the Company), in the financial
condition, net worth or results of operations of the Company
and its Subsidiaries, except in each case as described in or
contemplated by the Prospectus;
(ii) trading in any securities issued or guaranteed
by the Company shall have been suspended by the Commission or
the NYSE or any other exchange or trading in securities
generally on the NYSE, the American Stock Exchange or the
National Association of Securities Dealers Inc. shall have
been suspended or minimum or maximum prices shall have been
established on any such exchange;
(iii) a banking moratorium shall have been declared
by New York or United States authorities; or
(iv) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any
foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States or
(C) any other calamity or crisis or material adverse change in
general economic, political or financial conditions, either
within or outside the United States, that, in the sole
judgment of the Representative, is material and adverse and
makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares as contemplated by the
Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as
provided in Section 10 hereof.
12. Information Supplied by the Underwriters. The information furnished
by the Underwriters to the Company for the purposes of Sections 2(b) and 8
hereof will be set forth in a letter delivered on the Closing Date. The
Underwriters confirm that such statements (to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
(facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇, Stroock & Stroock &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (facsimile: (212)
806-6006); and if sent to the Company, shall be delivered or sent by mail, telex
or facsimile transmission and confirmed in writing to the ▇▇▇▇▇▇ ▇▇▇▇▇, CFO and
Vice-President-Finance, Maverick Tube Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), with a
copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇).
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the Underwriters, the Company, and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
-25-
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 8(a)of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii)
the indemnities of the Underwriters contained in Section 8(b) of this Agreement
shall also be for the benefit of the Company, the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act. No purchaser of Shares
from any Underwriter shall be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-26-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and each
of the Underwriters.
Very truly yours,
MAVERICK TUBE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as
Representative of the several
Underwriters
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President
--------------------------------
-27-
SCHEDULE I
---------------------------------------- -------------------------------------- --------------------------------------
UNDERWRITER NUMBER OF FIRM SHARES TO BE NUMBER OF OPTION SHARES TO BE
PURCHASED FROM THE COMPANY PURCHASED FROM THE COMPANY
---------------------------------------- -------------------------------------- --------------------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. 2,500,000 N/A
---------------------------------------- -------------------------------------- --------------------------------------
Deutsche Bank Securities Inc. 1,350,000 N/A
---------------------------------------- -------------------------------------- --------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 1,150,000 N/A
---------------------------------------- -------------------------------------- --------------------------------------
---------------------------------------- -------------------------------------- --------------------------------------
Total: 5,000,000 N/A
---------------------------------------- -------------------------------------- --------------------------------------
-28-
