Exhibit 1.1
1,150,000
Gulfport Energy
Corporation
Common Stock
UNDERWRITING
AGREEMENT
January 30, 2007
JOHNSON RICE & COMPANY
L.L.C.
639 Loyola Avenue, Suite 2775
New Orleans, Louisiana 70113
Ladies and Gentlemen:
Introductory.
Gulfport Energy Corporation, a
Delaware corporation (the “ Company ”), proposes
to issue and sell to Johnson Rice & Company L.L.C. (the
“ Underwriter ”) an aggregate of 1,150,000
shares (the “ Firm Shares ”) of its common
stock, par value $.01 per share (the “ Shares
”). In addition, the Company has granted to the Underwriter
an option to purchase up to an additional 172,500 Shares (the
“ Optional Shares ”), as provided in
Section 2. The Firm Shares and, if and to the extent such
option is exercised, the Optional Shares are collectively called
the “ Offered Shares .”
The Company has prepared and filed
with the Securities and Exchange Commission (the “
Commission ”) a shelf registration statement on
Form S-3 (File No. 333-139480), including a base
prospectus (the “ Base Prospectus ”) to be used
in connection with the public offering and sale of the Offered
Shares. Such registration statement in the form in which it was
declared effective by the Commission under the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ Securities Act
”), including all documents incorporated or deemed to be
incorporated by reference therein and any information deemed to be
a part thereof at the time of effectiveness pursuant to
Rule 430B under the Securities Act or the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ Exchange Act ”),
is called the “ Registration Statement .” The
prospectus supplement to be filed promptly after the date hereof
describing the Offered Shares and the offering thereof (the “
Prospectus Supplement ”), together with the Base
Prospectus, in the form first used by the Underwriter to confirm
sales of the Offered Shares or in the form first made available to
the Underwriter by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act, is referred to
herein as the “ Prospectus .” As used herein,
“ Applicable Time ” is 6:00 p.m. (New York time)
on January 30, 3007. As used herein, “ free writing
prospectus ” has the meaning set forth in Rule 405 under
the Securities Act, and “ Time of Sale Prospectus
” means the Base Prospectus, as amended or supplemented
immediately prior to the Applicable Time, together with the free
writing prospectuses, if any, identified on Schedule A and
the information agreed to in writing by the Company and the
Underwriter as the information to be conveyed orally by the
Underwriter to purchasers of the Offered Shares at the Applicable
Time, as set forth on Schedule B . As used herein, the terms
“ Registration Statement ,” “ Base
Prospectus ,” “ Time of Sale Prospectus
” and “ Prospectus ” shall include the
documents incorporated and deemed to be incorporated by reference
therein. All references in this Agreement to amendments or
supplements to the Registration Statement, the
Base Prospectus, the Time of Sale Prospectus or
the Prospectus shall be deemed to mean and include the filing of
any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement, the Base
Prospectus, the Time of Sale Prospectus or the Prospectus, as the
case may be. All references in this Agreement to (i) the
Registration Statement, the Base Prospectus, the Time of Sale
Prospectus or the Prospectus, or any amendments or supplements to
any of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“EDGAR”) and (ii) the Prospectus
shall be deemed to include the “ electronic Prospectus
” provided for use in connection with the offering of the
Offered Shares as contemplated by Section 3(n) of this
Agreement. All references in this Agreement to financial statements
and schedules and other information that are “
contained ,” “ included ” or
“ stated ” in the Registration Statement, the
Base Prospectus, the Time of Sale Prospectus or the Prospectus (and
all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information that are or are deemed to be incorporated by reference
in the Registration Statement, the Base Prospectus, the Time of
Sale Prospectus or the Prospectus, as the case may be.
The Company hereby confirms its
agreements with the Underwriter as follows:
Section 1. Representations and
Warranties of the Company . The Company hereby represents, warrants and
covenants to each Underwriter as follows:
(a) Compliance with Registration
Requirements . The Registration Statement has been declared
effective by the Commission under the Securities Act. The Company
has complied with all requests of the Commission for additional or
supplemental information. No stop order suspending the
effectiveness of the Registration Statement is in effect and no
proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
The Prospectus when filed complied
in all material respects with the Securities Act and, if filed by
electronic transmission pursuant to EDGAR (except as may be
permitted by Regulation S T under the Securities Act), was
identical to the copy thereof delivered to the Underwriter for use
in connection with the offer and sale of the Offered Shares. The
Registration Statement and any post-effective amendment thereto, at
the time it became effective and at the First Closing Date (as
defined in Section 2) and, if applicable, as of each Option
Closing Date (as defined in Section 2), complied and will
comply in all material respects with the Securities Act and did not
and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. As of the
Applicable Time, the Time of Sale Prospectus did not, and at the
time of each sale of the Offered Shares and at the First Closing
Date, the Time of Sale Prospectus, as then amended or supplemented
by the Company, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Prospectus, as amended or supplemented, as of its date and at the
First Closing Date and, if applicable, as of each Option Closing
Date, did not and will not contain 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. The representations and
warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus or Time of Sale Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in
writing by
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the Underwriter expressly for use therein, it
being understood and agreed that the only such information
furnished by the Underwriter to the Company consists of the
information described in Section 8(b) below. There are no
contracts or other documents required to be described in the Time
of Sale Prospectus or the Prospectus or to be filed as exhibits to
the Registration Statement which have not been described or filed
as required.
The Company meets, and at the time
the Registration Statement was originally declared effective the
Company met, the applicable requirements for use of Form S-3 under
the Securities Act.
The documents incorporated or deemed
to be incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied or will
comply, as applicable, in all material respects with the applicable
requirements of the Exchange Act.
The Company is not an
“ineligible issuer” (as defined in Rule 405 under the
Securities Act) in connection with the offering of the Offered
Shares pursuant to Rules 164, 405 and 433 under the Securities Act.
Any free writing prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
each such free writing prospectus, as of its issue date and at the
First Closing Date and, if applicable, as of each Option Closing
Date, did not, does not and will not, as applicable, include any
information that conflicted, conflicts with or will conflict with
the information contained in the Registration Statement, the Time
of Sale Prospectus or the Prospectus, including any document
incorporated by reference therein. Except for the free writing
prospectuses, if any, identified on Schedule A , the Company
has not prepared, used or referred to, and will not, without the
Underwriter’s prior consent, prepare, use or refer to, any
free writing prospectus.
(b) Offering Materials Furnished
to Underwriter . The Company has delivered to the Underwriter
one complete manually signed copy of the Registration Statement and
of each consent and certificate of experts filed as a part thereof,
and conformed copies of the Registration Statement (without
exhibits), Time of Sale Prospectus, the Prospectus, as amended or
supplemented, and any free writing prospectuses reviewed and
consented to by the Underwriter, in such quantities and at such
places as the Underwriter has reasonably requested.
(c) Distribution of Offering
Material By the Company . The Company has not distributed and
will not distribute, prior to the later of (i) the expiration
or termination of the option granted to the Underwriter in
Section 2 and (ii) the completion of the
Underwriter’s distribution of the Offered Shares, any
offering material in connection with the offering and sale of the
Offered Shares other than a Time of Sale Prospectus, the Prospectus
or the Registration Statement or any other document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act.
(d) Independent Accountants .
Grant Thornton LLP (i) was listed as an independent registered
public accounting firm with the Public Company Accounting Oversight
Board as of the date hereof and, to the knowledge of the Company,
continues to hold this status and (ii) to the knowledge of the
Company, is, with respect to the Company, in compliance with
subsections (g) through (l) of Section 10A of the
Exchange Act.
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(e) Financial Statements . The financial
statements filed with the Commission as a part of or incorporated
by reference into the Registration Statement, the Prospectus and
Time of Sale Prospectus present fairly in all material respects the
financial condition of the Company as of and at the dates
indicated, and the statements of operations, stockholders’
equity and comprehensive income and cash flows of the Company for
the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States of America (“ GAAP ”) applied on a
consistent basis throughout the periods involved except to the
extent disclosed in the notes thereto. The selected historical
financial data and the summary financial data included in the
Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
or incorporated by reference into the Registration Statement. The
other financial and statistical data set forth in the Registration
Statement and included in either the Prospectus or the Time of Sale
Prospectus are accurately presented and prepared on a basis
consistent with the financial statements and books and records of
the Company. There are no financial statements (historical or pro
forma) that are required to be included in the Registration
Statement and either the Prospectus or the Time of Sale Prospectus
that are not included as required. The Company has not engaged in
or effected any transaction or arrangement that would constitute an
“off-balance sheet arrangement” (as defined in
Item 303 of Regulation S-K of the Commission (“
Regulation S-K ”)). All non-GAAP financial measures
(as defined in Regulation G of the Commission) and ratios derived
using non-GAAP financial measures have been presented in compliance
with Item 10 of Regulation S-K.
(f) Reserve Report Data . The
oil and gas reserve estimates of the Company contained or
incorporated by reference into the Registration Statement and
included in the Prospectus and Time of Sale Prospectus have been
prepared by independent reserve engineers in accordance with
Commission guidelines applied on a consistent basis throughout the
periods involved, and the Company has no reason to believe that
such estimates do not fairly reflect the oil and gas reserves of
the Company at the dates indicated. Other than production of the
reserves in the ordinary course of business and intervening product
price fluctuations described in the Registration Statement,
Prospectus and Time of Sale Prospectus, the Company is not aware of
any facts or circumstances that would cause a Material Adverse
Change in the reserves or the present value of future net cash
flows therefrom as described in the Registration Statement,
Prospectus or Time of Sale Prospectus.
(g) No Material Adverse Change in
Business . Except as disclosed in the Time of Sale Prospectus,
subsequent to the respective dates as of which information is given
in the Time of Sale Prospectus, there has been no (i) material
adverse change in the condition, financial or otherwise, results of
operations or prospects of the Company taken as a whole (the
“ Enterprise ”), whether or not arising in the
ordinary course of business (a “ Material Adverse
Change ”), (ii) transaction which is material to the
Enterprise, (iii) any obligation, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company, which is material to the Enterprise, (iv) change in
the capital stock of the Company, (v) material change in the
outstanding indebtedness of the Company or (vi) dividend or
distribution of any kind declared, paid or made on the capital
stock of the Company.
(h) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has the requisite corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and Time of
Sale Prospectus and to enter into and perform its obligations under
this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such
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qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or to be in good standing
would not result in a Material Adverse Change. Except as otherwise
set forth in the Registration Statement, the Prospectus or the Time
of Sale Prospectus, the Company does not own or control, directly
or indirectly, any corporation, association or other
entity.
(i) Capitalization . The
authorized capital stock of the Company and the issued and
outstanding capital stock of the Company as of December 14,
2006, are as set forth on Schedule C . The shares of issued
and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable
and none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or similar rights of any
security holder of the Company. The description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
as described in the Registration Statement or in the Time of Sale
Prospectus accurately and fairly present in all material respects
the information required to be shown with respect to such plans,
arrangements, options and rights.
(j) Other Securities . Except
as disclosed in the Time of Sale Prospectus, there are no
outstanding (i) securities or obligations of the Company
convertible into or exchangeable for any equity interests of the
Company, (ii) warrants, rights or options to subscribe for or
purchase from the Company any equity interests or any such
convertible or exchangeable securities or obligations, or
(iii) obligations of the Company to issue any equity
interests, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(k) Stock Exchange Listing .
The Shares are registered pursuant to Section 12(b) of the
Exchange Act and are listed on The Nasdaq Global Select Market and
the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Shares under the
Exchange Act or delisting the Shares from The Nasdaq Global Select
Market, nor has the Company received any notification that the
Commission or The Nasdaq Global Select Market is contemplating
terminating such registration of listing.
(l) Authorization of Agreement
and Binding Effect . This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable in accordance with
its terms except as enforcement may be limited by bankruptcy,
insolvency or other laws or court decisions relating to or
affecting creditor’s rights generally, and except to the
extent that enforcement of the indemnification and contribution
obligations provided for herein may be limited by federal or state
securities laws or the public policies underlying such
laws.
(m) Authorization and Description
of Optional Shares . The Optional Shares have been duly
authorized for issuance and sale to the Underwriter pursuant to
this Agreement. When the Company issues and delivers the Optional
Shares pursuant to this Agreement against payment of the
consideration set forth herein, the Optional Shares will be validly
issued, fully paid and non-assessable; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Time of Sale Prospectus, and such
descriptions conform in all material respects to the rights set
forth in the instruments defining the same; the issuance by the
Company of the Optional Shares is not subject to preemptive or
other similar rights of any security holder of the Company; and the
Company has authorized and available a sufficient number of Shares
for issuance of the Optional Shares pursuant to this Agreement and
for issuance upon the exercise, conversion or exchange of all
outstanding options and other securities of the Company that are
convertible into or exchangeable for Shares.
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(n) Absence of Defaults and Conflicts .
The Company is not (i) in violation of its certificate of
incorporation or by-laws, or (ii) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or
to which any of the property or assets of the Company is subject
(collectively, “ Agreements and Instruments ”)
except, in the case of clause (ii), for any defaults which,
singularly or in the aggregate, would not result in a Material
Adverse Change; and the execution, delivery and performance of this
Agreement, the consummation of the transactions contemplated by
this Agreement and in the Time of Sale Prospectus including the
issuance and sale of the Offered Shares and the use of the proceeds
from the sale of the Offered Shares as described therein, and the
compliance by the Company with its obligations under this Agreement
(except as contemplated by the Time of Sale Prospectus) do not and
will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the properties or assets of the Company pursuant to the
Agreements and Instruments except for such conflicts, breaches,
defaults, liens, charges or encumbrances which, singularly or in
the aggregate, would not result in a Material Adverse Change, nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of
its assets, properties or operations. As used herein, a “
Repayment Event ” means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company.
(o) Absence of Labor Disput
e. No labor dispute with the employees of the Company exists or to
the knowledge of the Company is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its principal operators, contractors, suppliers
or customers, which, in either case, would result in a Material
Adverse Change. The Company is not aware that any key employee or
significant group of employees of the Company plans to terminate
employment with the Company.
(p) Absence of Proceedings .
There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company, which is
required to be disclosed in the Registration Statement (other than
as disclosed in the Time of Sale Prospectus), or which might result
in a Material Adverse Change, or which might materially and
adversely affect the properties or assets of the Enterprise or the
consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder; the
aggregate of any and all pending legal or governmental proceedings
to which the Company is a party or of which any of its property or
assets is the subject which are not described in the Time of Sale
Prospectus, including ordinary routine litigation incidental to the
business, could not result in a Material Adverse Change.
(q) Accuracy of Exhibits .
There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus pursuant
to Form S-3 or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of Regulation S-K or
incorporated by reference therein which have not been so described,
filed or incorporated as required.
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(r) Possession of Intellectual Property .
The Company owns or possesses, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by
it, except where the failure to own or possess, or have the ability
to acquire on reasonable terms such Intellectual Property would
not, singularly or in the aggregate, cause a Material Adverse
Change. The Company has not received any notice and is not
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the
Company therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Change.
(s) Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, or in connection with the offering, issuance or sale of
the Offered Shares under this Agreement or the consummation of the
transactions contemplated by this Agreement except such as have
been already obtained or as may be required under the Securities
Act or the regulations promulgated thereunder or state securities
laws or by the National Association of Securities Dealers, Inc.
(the “ NASD ”),.
(t) No Price Stabilization or
Manipulation; Compliance with Regulation M . The Company has
not taken, directly or indirectly, any action designed to or that
would be reasonably expected to cause or result in stabilization or
manipulation of the price of the Shares or any other
“reference security” (as defined in Rule 100 of
Regulation M under the Exchange Act (“ Regulation M
”)) whether to facilitate the sale or resale of the Offered
Shares or otherwise, and has taken no action which would directly
or indirectly violate Regulation M. The Company acknowledges that
the Underwriter may engage in passive market making transactions in
the Offered Shares on the Nasdaq National Market in accordance with
Regulation M.
(u) Possession of Licenses and
Permits . The Company possesses such permits, licenses,
certificates, approvals, consents and other authorizations
(collectively, “ Governmental Licenses ”) issued
by appropriate federal, state, local or foreign regulatory bodies
necessary for the ownership of its assets and to conduct the
business now operated by it, except where the failure to have
obtained the same would not cause a Material Adverse Change; the
Company is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to so comply would
not singly or in the aggregate cause a Material Adverse Change; all
of the Governmental Licenses are valid and in full force and
effect, except where the invalidity or the failure to be in full
force and effect would not singly or in the aggregate cause a
Material Adverse Change; and the Company has not received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding would
result in a Material Adverse Change.
(v) Properties . Except as
otherwise set forth in the Registration Statement, the Prospectus
or the Time of Sale Prospectus or such as in the aggregate does not
now cause or will in the future cause a Material Adverse Change,
the Company has title to its properties as follows: (a) with
respect to its wells (including leasehold interests and appurtenant
personal property) and its non-producing oil and gas properties
(including undeveloped locations on leases held by production and
those
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leases not held by production), such title is
good and free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and restrictions, (b) with
respect to its non-producing properties in exploration prospects,
such title was investigated in accordance with customary industry
procedures prior to the Company’s acquisition thereof;
(c) with respect to its real property other than oil and gas
interests, such title is good and marketable free and clear of all
liens, security interests, pledges, charges, encumbrances,
mortgages and restrictions; and (d) with respect to its
personal property other than that appurtenant to its oil and gas
interests, such title is free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and
restrictions. No real property owned, leased, licensed, or used by
the Company lies in an area which is, or to the knowledge of the
Company will be, subject to restrictions which would prohibit, and
no statements of facts relating to the actions or inaction of
another person or entity or his or its ownership, leasing,
licensing, or use of any real or personal property exists or will
exist which would prevent, the continued effective ownership,
leasing, licensing, exploration, development or production or use
of such real property in the business of the Company as presently
conducted or as the Registration Statement, the Prospectus or the
Time of Sale Prospectus indicates it contemplates conducting,
except as may be properly described in the Registration Statement,
the Prospectus or the Time of Sale Prospectus or such as in the
aggregate do not now cause and will not in the future cause a
Material Adverse Change.
(w) Insurance . Except as
otherwise set forth in the Registration Statement, the Prospectus
or the Time of Sale Prospectus, the Company is insured by insurers
of recognized financial responsibility against such losses and
risks and in such amounts as are adequate for the conduct of its
businesses and as are customary for the business in which it is
engaged; all such policies of insurance insuring the Company are in
full force and effect and the Company has no 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.
(x) Taxes . The Company has
filed on a timely basis all foreign, federal, state and local tax
returns that are required to be filed or have requested extensions
thereof (except in any case in which the failure so to file would
not cause a Material Adverse Change) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it to the extent due and payable, except for any
such assessment, fine or penalty that is currently being contested
in good faith or would not cause a Material Adverse
Change.
(y) Investment Company Act .
The Company is not required, and upon the issuance and sale of the
Offered Shares as herein contemplated and the application of the
net proceeds therefrom as described in the Time of Sale Prospectus
will not be required, to register as an “investment
company” within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations of
the Commission promulgated thereunder.
(z) Environmental Laws .
There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of hazardous
substances or hazardous wastes by the Company (or, to the knowledge
the Company or any of its predecessors in interest), at, upon or
from any of the property now or previously owned, leased or
operated by the Company in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit that
would require the Company to undertake any remedial action under
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action that
would not, individually or in the aggregate with all such
violations and remedial actions, cause a Material Adverse Change.
Except for abandonment and similar costs incurred or to be incurred
in the ordinary course of business of the Company, there has been
no
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material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto any property
now or previously owned, leased or operated by the Company or into
the environment surrounding such property of any hazardous
substances or hazardous wastes due to or caused by the Company (or,
to the knowledge of the Company, any of its predecessors in
interest), except for any such spill, discharge, leak, emission,
injection, escape, dumping or release that would not, singularly or
in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, result in a
Material Adverse Change; and the terms “hazardous
substances,” and “hazardous wastes” shall be
construed broadly to include such terms and similar terms, all of
which shall have the meanings specified in any applicable local,
state and federal laws or regulations with respect to environmental
protection. Except as set forth in the Time of Sale Prospectus, the
Company has not been named as a “potentially responsible
party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(aa) Registration Rights .
There are no persons with registration rights or other similar
rights to have any securities of the Company registered pursuant to
the Registration Statement or sold in the offering contemplated by
this Agreement with respect to the Offered Shares included in the
Registration Statement, except for such rights as have been duly
waived.
(bb) Internal Accounting .
Subject to such exceptions, if any, as could not reasonably be
expected to cause a Material Adverse Change, the Company maintains
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 GAAP
and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(cc) Disclosure Controls and
Procedures . The Company has established and maintains
disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)), which (i) are designed to
ensure that material information relating to the Company is made
known to the Company’s principal executive officer and its
principal financial officer by others within the Company,
particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) have
been evaluated for effectiveness as of a date within 90 days prior
to the earlier of the date that the Company filed its most recent
annual or quarterly report with the Commission and the date of the
Time of Sale Prospectus; and (iii) are effective in all
material respects to perform the functions for which they were
established. Based on the most recent evaluation of its disclosure
controls and procedures, (i) the Company is not aware of
material weaknesses in the design or operation of internal control
over financial reporting which are reasonably likely to adversely
affect the registrant’s ability to record, process, summarize
and report financial information, (ii) the Company’s
audit committee of the Company’s board of directors and the
Company’s independent registered public accounting firm have
been made aware of any significant deficiencies in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s
ability to record, process, summarize and report financial
information and (iii) the Company is not aware of any fraud,
whether or not material, that involves management or other
employees who have a significant role in the Company’s
internal control over financial reporting. The Company is not aware
of any change in its internal control over financial reporting that
has occurred during its most recent fiscal quarter that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
9
(dd) Certain Relationships and Related
Transactions . No relationship, direct or indirect, exists
between or among the Company on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company on
the other hand, which is required to be described or incorporated
by reference in the Prospectus and which is not so described or
incorporated. The Time of Sale Prospectus contains in all material
respects the same description of the matters set forth in the
preceding sentence contained in the Prospectus.
(ee) Brokers . The Company is
not a party to any contract, agreement or understanding with any
person that would give rise to a valid claim against the Company or
the Underwriter for a brokerage commission, finder’s fee or
like payment in connection with the offering and sale of the
Offered Shares.
(ff) Sarbanes-Oxley Act of
2002 . The Company is in compliance, in all material respects,
with all applicable provisions of the Sarbanes-Oxley Act of 2002
and all rules and regulations promulgated thereunder or
implementing the provisions thereof.
(gg) Certain Payments .
Neither the Company nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company, (i) has used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity, made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds, (ii) violated or is
in violation of any provisions of the Foreign Corrupt Practices Act
of 1977, or (iii) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(hh) ERISA . The minimum
funding standard under Section 302 of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (“ ERISA
”), has been satisfied by each “pension plan” (as
defined in Section 3(2) of ERISA) which has been established
or maintained by the Company, and the trust forming part of each
such plan which is intended to be qualified under Section 401
of the Internal Revenue Code of 1986, as amended, is so qualified;
the Company has fulfilled its obligations, if any, under
Section 515 of ERISA; the Company does not maintains and is
not required to contribute to a “welfare plan” (as
defined in Section 3(1) of ERISA) which provides retiree or
other post-employment welfare benefits or insurance
