Exhibit 1.1
4,200,000 Shares
RANGE RESOURCES CORPORATION
Common Stock (par value $0.01 per share)
UNDERWRITING AGREEMENT
April 30, 2008
April 30, 2008
J.P.
Morgan Securities Inc.
Credit Suisse Securities (USA) LLC
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P.
Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Credit
Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Dear
Sirs and Madames:
Range Resources Corporation, a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the several Underwriters listed in
Schedule 1 hereto (the “ Underwriters ”),
for whom you are acting as representatives (the “
Representatives ”) an aggregate of 4,200,000 shares of
its Common Stock, par value $0.01 per share (the “
Underwritten Shares ”) and, for the sole purpose of
covering over-allotments in connection with the sale of the
Underwritten Shares, up to an additional 630,000 shares of its
Common Stock (the “ Option Shares ”). The
Underwritten Shares and the Option Shares are hereinafter referred
to as the “ Shares .” The shares of common
stock, par value $0.01 per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are
hereinafter referred to as the “ Common Stock
.”
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Shares, as follows:
1. Registration
Statement . The Company has prepared and filed with the
Securities and Exchange Commission (the “ Commission
”) under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ Securities Act ”), an automatic shelf
registration statement on Form S-3 (File No. 333-135193),
including a prospectus, relating to the Shares. Such registration
statement, as amended on the date hereof, including the
information, if any, deemed pursuant to Rule 430A, 430B or
430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (“
Rule 430 Information ”), is referred to herein as
the
“
Registration Statement ”; and as used herein, the term
“ Preliminary Prospectus ” means the base
prospectus included in such registration statement (and any
amendments thereto), the prospectus supplement filed with the
Commission pursuant to Rule 424(b)(5) under the Securities Act
on April 30, 2008, and the prospectus included in the
Registration Statement at the time of its effectiveness that omits
Rule 430 Information, and the term “ Prospectus
” means the prospectus in the form first used (or made
available upon request of purchasers pursuant to Rule 173
under the Securities Act) in connection with confirmation of sales
of the Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the
“ Rule 462 Registration Statement ”), then
any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement 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 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be and any reference to “
amend ”, “ amendment ” or “
supplement ” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ Exchange Act ”) that are deemed to be
incorporated by reference therein. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
At or prior to the time when sales of
the Shares were first made (the “ Time of Sale
”), the Company had prepared the following information
(collectively with the pricing information set forth on Annex C,
the “ Time of Sale Information ”): a Preliminary
Prospectus dated April 28, 2008, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex C hereto.
2. Purchase of the Shares by
the Underwriters . (a) The Company agrees to issue and
sell the Underwritten Shares to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price per share of $63.7248
(the “ Purchase Price ”).
In addition, subject to the
conditions set forth in this Section 2, the Company agrees to
issue and sell the Option Shares to the several Underwriters as
provided in this Agreement, and the Underwriters, on the basis of
the
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representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price.
If any Option Shares are to be
purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the
same ratio to the aggregate number of Option Shares being purchased
as the number of Underwritten Shares set forth opposite the name of
such Underwriter in Schedule 1 hereto bears to the aggregate
number of Underwritten Shares being purchased from the Company by
the several Underwriters, subject, however, to such adjustments to
eliminate any fractional Shares as the Representatives in their
sole discretion shall make.
The Underwriters may exercise the
option to purchase the Option Shares at any time in whole, or from
time to time in part, on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives
to the Company. Such notice shall set forth the aggregate number of
Option Shares as to which the option is being exercised and the
date and time when the Option Shares are to be delivered and paid
for which may be the same date and time as the Closing Date (as
hereinafter defined) but shall not be earlier than the Closing Date
nor later than the tenth full business day after the date of such
notice. Any such notice shall be given at least two business days
prior to the date and time of delivery specified therein.
(b) The Company understands that
the Underwriters intend to make a public offering of the Shares as
soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the
Shares on the terms set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriters may offer and sell
Shares to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or
through any Underwriter.
(c) Payment for the Underwritten
Shares shall be made by wire transfer in immediately available
funds to the account specified by the Company to the
Representatives in the case of the Underwritten Shares on
May 6, 2008, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing.
In the case of the Option Shares, payment shall be made consistent
with the terms set forth above on the date and at the time and
place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The
time and date of such payment for the Underwritten Shares is
referred to herein as the “ Closing Date ” and
the time and date for such payment for the Option Shares, if other
than the Closing Date, are herein referred to as the “
Additional Closing Date ”.
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Payment for the Underwritten Shares
to be purchased on the Closing Date or the Additional Closing Date,
as the case may be, shall be made against delivery through the
Depository Trust Company to the Representatives for the respective
accounts of the several Underwriters of the Shares to be purchased
on such date.
(d) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, the Company or
any other person. Additionally, neither of the Representatives nor
any other Underwriter is advising the Company or any other person
as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have
no responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3. Representations and
Warranties of the Company . The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus .
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue
statement of a material fact or omit 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; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in any Preliminary Prospectus.
(b) Time of Sale Information .
The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date 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; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in
conformity
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with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in such Time of Sale Information. No statement of material
fact included in the Prospectus has been omitted from the Time of
Sale Information and no statement of material fact included in the
Time of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
(c) Issuer Free Writing
Prospectus . Other than the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Shares (each such communication
by the Company or its agents and representatives (other than a
communication referred to in clause (i) below) an “
Issuer Free Writing Prospectus ”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex
C hereto and other written communications approved in writing in
advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities
Act, has been filed in accordance with the Securities Act (to the
extent required thereby) and, when taken together with the
Preliminary Prospectus accompanying, or delivered prior to delivery
of, such Issuer Free Writing Prospectus, did not, and at the
Closing Date 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; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
any Issuer Free Writing Prospectus.
(d) Registration Statement and
Prospectus . The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405
of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Securities Act has been received by
the Company. No order suspending the effectiveness of the
Registration Statement has been
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issued by the
Commission and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration
Statement and any amendment thereto, the Registration Statement
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 in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus will not contain any untrue statement
of a material fact or omit 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; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
the Registration Statement and the Prospectus and any amendment or
supplement thereto.
(e) Incorporated Documents .
The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when
they were filed with the Commission, conformed in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, 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, in the light of the circumstances under which
they were made, not misleading.
(f) Financial Statements . The
audited financial statements of the Company included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, together with the related
notes and schedules, comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act,
as applicable, and present fairly in all material respects the
consolidated
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financial
position of the Company and its Subsidiaries (as hereinafter
defined) as of the dates indicated and the consolidated results of
operations and cash flows of the Company and its Subsidiaries for
the periods specified and have been prepared in compliance in all
material respects with the requirements of the Exchange Act and in
conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis during the
periods involved and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein. The other
financial and accounting data, including the unaudited financial
statements, included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, have been derived from the accounting records of the
Company and its subsidiaries and present fairly the information
shown therein, in all material respects.
(g) No Material Adverse Change
. Subsequent to the respective dates as of which information is
given or incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus, and except as may
be otherwise stated or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, there has not been (i) any material and
unfavorable change, financial or otherwise, in the business,
properties, prospects, regulatory environment, results of
operations or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole, (ii) any transaction
entered into by the Company or any of its Subsidiaries, which is
material to the Company and its Subsidiaries, taken as a whole, or
(iii) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsidiaries
which is material to the Company and its Subsidiaries, taken as a
whole.
(h) Organization and Good Standing
of the Company . The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with full corporate power and authority
to own, lease and operate its properties and conduct its business
in all material respects as described in the Registration
Statement, the Time of Sale Information and the Prospectus. The
Company is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified and
in good standing would not, individually or in the aggregate, have
a material adverse effect on the operations, business, prospects,
properties, financial condition or results of operation of the
Company and its Subsidiaries taken as a whole (a “
Material Adverse Effect ”).
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(i) Organization and Good Standing
of Significant Subsidiaries . Mountain Front Partners LLC,
Range Resources – Appalachia, LLC, Range Energy I, Inc.,
Range HoldCo, Inc., Range Production Company, Range Texas
Production, L.L.C., PMOG Holdings, Inc., Range Operating New
Mexico, Inc., Range Operating Texas, L.L.C., Range Resources
– Pine Mountain, Inc., Pine Mountain Acquisition, Inc.,
Stroud Energy GP, LLC, Stroud Energy LP, LLC, Stroud Oil
Properties, LP, Stroud Energy Management GP, LLC, Stroud Energy,
Ltd. and REVC Holdco, LLC (the “ Subsidiaries
”), include each subsidiary of the Company that constitutes a
“significant subsidiary” of the Company as defined by
Rule 1-02 of Regulation S-X; no other subsidiaries of the
Company would, individually or in the aggregate, constitute such a
significant subsidiary; each Subsidiary has been duly organized and
is validly existing as a corporation, limited liability company or
limited partnership and (in those jurisdictions in which good
standing is a relevant concept for such type of entity) is in good
standing under the laws of the jurisdiction of its organization,
with full corporate, limited liability company or partnership power
and authority to own, lease and operate its properties and to
conduct its business in all material respects as described in the
Registration Statement, the Time of Sale Information and the
Prospectus; each Subsidiary is duly qualified to do business as a
foreign corporation, limited liability company or limited
partnership and (in those jurisdictions in which good standing is a
relevant concept for such type of entity) is in good standing in
each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of
the Subsidiaries that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable, the
outstanding membership interest of Mountain Front Partners LLC, has
been issued in accordance with the organizational documents of
Mountain Front Partners, LLC, Range Resources – Appalachia,
LLC, has been issued in accordance with the organizational
documents of Range Resources – Appalachia, LLC, the
outstanding membership interest of REVC Holdco, LLC, has been
issued in accordance with the terms of the organizational documents
of REVC Holdco, LLC, the outstanding membership interest of Range
Texas Production, L.L.C., has been issued in accordance with the
organizational documents of Range Texas Production, L.L.C., the
outstanding membership interest of Range Operating Texas, L.L.C.,
has been issued in accordance with the organizational documents of
Range Operating Texas, L.L.C., the outstanding membership interest
of Stroud Energy GP, LLC, has been issued in accordance with the
organizational documents
8
of Stroud
Energy GP, LLC, the outstanding membership interest of Stroud
Energy LP, LLC, has been issued in accordance with the
organizational documents of Stroud Energy LP, LLC, the outstanding
partnership interest of Stroud Oil Properties, LP, has been issued
in accordance with the terms of the limited partnership agreement
of Stroud Oil Properties, LP, the outstanding membership interest
of Stroud Energy Management GP, LLC, has been issued in accordance
with the organizational documents of Stroud Energy Management GP,
LLC, the outstanding partnership interest of Stroud Energy, Ltd.,
has been issued in accordance with the terms of the limited
partnership agreement of Stroud Energy, Ltd. and, except as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, are owned, directly or indirectly,
by the Company, subject to no security interest, other encumbrance
or adverse claims.
(j) Capitalization . The
Company had an authorized and outstanding capitalization as set
forth under the column heading entitled “Actual” in the
section of the Registration Statement, the Time of Sale Information
and the Prospectus entitled “Capitalization” and, as
adjusted to give effect to the offering of the Shares and the
application of the net proceeds therefrom as described in the
“Use of Proceeds” section of the Registration
Statement, the Time of Sale Information and the Prospectus;
assuming the accuracy of the transaction expenses and the pricing
terms for the offering of the Shares used in the section of the
Registration Statement, the Time of Sale Information and the
Prospectus entitled “Capitalization,” the Company
would, as of March 31, 2008, have had an authorized and
outstanding capitalization as set forth under the column heading
entitled “As adjusted for this offering” in the section
of the Registration Statement, the Time of Sale Information and the
Prospectus entitled “Capitalization”; assuming the
accuracy of the transaction expenses and the pricing terms for an
offering of $250 million senior subordinated notes used in the
section of the Registration Statement, the Time of Sale Information
and the Prospectus entitled “Capitalization,” the
Company would, as of March 31, 2008, have had an authorized and
outstanding capitalization as set forth under the column heading
entitled “As further adjusted for notes offering” in
the section of the Registration Statement, the Time of Sale
Information and the Prospectus entitled
“Capitalization”; all of the issued and outstanding
shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable.
(k) Due Authorization. The
Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization,
execution and delivery of this Agreement and the
9
consummation of
the transactions contemplated thereby has been duly and validly
taken.
(l) Underwriting Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company.
(m) The Shares . The Shares
have been duly authorized by the Company and, when issued and
delivered in accordance with the terms of this Agreement and paid
for by the Underwriters, will be validly issued, fully paid and non
assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(n) No Violation, Default or
Conflicts . Neither the Company nor any of its Subsidiaries is
in breach or violation of, or in default under (nor has any event
occurred which with notice, lapse of time or both would result in
any breach or violation of, or constitute a default), (i) its
respective charter, bylaws or other applicable formation document
or (ii) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any material
license, material lease, material contract or other material
agreement or material instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of its Subsidiaries; and the
execution, delivery and performance of this Agreement and the
issuance and sale of the Shares will not conflict with, result in
any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would
result in any breach or violation of or constitute a default
under), (x) the charter, bylaws or other applicable formation
document of the Company or any of the Subsidiaries or
(y) under any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any material
license, material lease, material contract or other material
agreement or material instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of the Subsidiaries, which
conflicts, breaches, violations or defaults listed in clause
(y) of this subparagraph (n) would, individually or in
the aggregate, have a Material Adverse Effect.
(o) No Consents Required . No
approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or of or with the
rules of the New York Stock Exchange, or
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approval of the
stockholders of the Company, is required in connection with the
issuance and sale by the Company of the Shares or the consummation
of the transactions as contemplated hereby other than (i) as
may be required under the securities or blue sky laws of the
various jurisdictions in which the Shares are being sold by the
Underwriters; and (ii) a supplemental listing application for
the Shares to be filed with the New York Stock Exchange.
(p) Legal Proceedings . Except
as described in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there are no actions,
suits, claims, investigations or proceedings pending or threatened
or, to the knowledge of the Company or any of its Subsidiaries
after due inquiry, contemplated to which the Company or any of its
Subsidiaries or any of their respective directors or officers is or
would be a party or of which any of their respective properties is
or would be subject, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, which would result in
a judgment, decree or order either (1) having a Material
Adverse Effect or (2) preventing the consummation of the
transactions contemplated hereby, (ii) there are no current or
pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be
described in the Registration Statement that are not so described
in the Registration Statement, the Time of Sale Information and the
Prospectus and (iii) 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 as exhibits to the Registration Statement or described
in the Registration Statement, the Time of Sale Information or the
Prospectus.
(q) Independent Accountants .
Ernst & Young LLP, whose report on the consolidated financial
statements of the Company, is included or incorporated by reference
in the Registration Statement, the Time of Sale Information and the
Prospectus, was at the time of such report independent public
accountants with respect to the Company as required by the
Securities Act and the Exchange Act, and the applicable published
rules and regulations thereunder.
(r) Title to Real and Personal
Property . The Company and each of the Subsidiaries has good
and marketable title to all property (real and personal) described
or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus as being owned by each
of them, free and clear of all liens, claims, security interests or
other encumbrances, except as such do not materially
11
interfere with
the use of such property taken as a whole as described in the
Registration Statement, the Time of Sale Information and the
Prospectus; all the real property described in the Registration
Statement, the Time of Sale Information and the Prospectus as being
held under lease by the Company or a Subsidiary is held thereby
under valid, subsisting and enforceable leases with such exceptions
as do not materially interfere with the use of such property taken
as a whole as described in the Registration Statement, the Time of
Sale Information and the Prospectus.
(s) Title to Intellectual
Property . Each of the Company and its Subsidiaries own, or
have obtained valid and enforceable licenses for, or other adequate
rights to use, all material inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames,
copyrights, trade secrets and other proprietary information
described or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus as being
owned or licensed by them or which are necessary for the conduct of
their respective businesses, except where the failure to own,
license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect (collectively, “
Intellectual Property ”); and the conduct of their
respective businesses will not conflict in any material respect
with, and neither of the Company nor any of its Subsidiaries has
received notice of any claim or conflict with, any rights of
others.
(t) Investment Company Act .
Neither the Company nor any of the Subsidiaries is, nor after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the
Registration Statement, the Time of Sale Information and the
Prospectus will any of them be, required to register as an
“investment company” under the Investment Company Act
of 1940, as amended.
(u) Licenses and Permits .
Each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals (collectively,
“ Consents ”) and has made all necessary filings
required under any federal, state, local or foreign law, regulation
or rule (“ Filings ”) and has obtained all
necessary Consents from other persons, in order to conduct their
respective businesses, except where the failure to have any such
Consent or to have made any such Filing would not have a Material
Adverse Effect; neither the Company nor any of its Subsidiaries is
in violation of, or in default under, any such Consent which
violation or default would have a Material Adverse Effect.
(v) No Labor Disputes .
Neither the Company nor its Subsidiaries are involved in any labor
dispute with their respective
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employees nor,
to the knowledge of the Company, is any such dispute threatened
except, in each case, for disputes which would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
(w) Compliance With Environmental
Laws . The Company and its Subsidiaries and their properties,
assets and operations are in material compliance with, and hold all
material permits, authorizations and approvals required under,
Environmental Laws (as defined below), except to the extent that
failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a
Material Adverse Effect; there are no past or present events,
conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise
to any material costs or liabilities to the Company or its
Subsidiaries under Environmental Laws except as would not,
individually or in the aggregate, have a Material Adverse Effect;
except as would not, individually or in the aggregate, have a
Material Adverse Effect, the Company and each of the Subsidiaries
(i) is not the subject of any investigation, (ii) has not
received any notice or claim, (iii) is not a party to or
affected by any pending or threatened action, suit or proceeding,
(iv) is not bound by any judgment, decree or order or
(v) has not entered into any agreement, in each case relating
to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of
any Hazardous Materials (as defined below) (as used herein, “
Environmental Law ” means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to health, safety or
the protection, cleanup or restoration of the environment or
natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and “ Hazardous Materials ”
means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is
regulated by or may give rise to liability under any Environmental
Law.
(x) Disclosure Controls . The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 and 15d-15
under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to
the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for
which they were
13
established;
the Company’s auditors and the Audit Committee of the Board
of Directors have been advised of: (i) any significant
deficiencies in the design or operation of internal controls which
could adversely affect the Company’s ability to record,
process, summarize, and report financial data; and (ii) any fraud,
whether or not material, that involves management or other
employees who have a role in the Company’s internal controls;
any material weaknesses in internal controls have been identified
for the Company’s auditors; and since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
(y) Accounting Controls . The
Company and each of the Subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management’s general or specific 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.
(z) Insurance . The Company
and its Subsidiaries maintain insurance of the types and in the
amounts reasonably believed to be adequate for their business and
consistent in all material respects with insurance coverage
maintained by similar companies in similar businesses, all of which
insurance is in full force and effect.
(aa) No Registration Rights .
Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, no person has the right to act as
an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares, whether as a
result of the sale of the Shares as contemplated hereby or
otherwise.
(bb) No Stabilization .
Neither the Company nor any Affiliate has taken, directly or
indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale of the
Shares.
14
(cc) Reserves . Other than as
disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, the proved reserves for crude oil
and natural gas for each of the periods presented in the
Registration Statement, the Time of Sale Information and the
Prospectus were prepared in accordance with the Statement of
Financial Accounting Standards No. 69 and Rule 4-10 of
Regulation S-X.
(dd) Sarbanes-Oxley Act .
There is and has been no failure on the part of the Company and its
Subsidiaries or any of the officers and directors of the Company or
any of its Subsidiaries, in their capacities as such, to comply in
all material respects with the provisions of the Sarbanes-Oxley Act
of 2002 and the rules and regulations in connection therewith,
including without limitation Section 402 related to loans and
Sections 302 and 906 related to certifications.
(ee) Status under the Securities
Act . The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the
Securities Act in connection with the offering of the Shares. The
Company has paid the registration fee for this offering pursuant to
Rule 456(b)(1) under the Securities Act or will pay such fees
within the t
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