Exhibit 1.1
EQUITABLE RESOURCES,
INC.
7,500,000
Shares
Common
Stock
(no par
value)
Underwriting Agreement
May 6, 2008
Deutsche Bank
Securities Inc.
Banc of America Securities LLC
Credit Suisse Securities (USA) LLC
Lehman Brothers Inc.
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Deutsche Bank
Securities Inc.
60 Wall Street, 4 th Floor
New York, New York 10005
c/o Banc of America
Securities LLC
9 West 57 th
Street
New York, New York
10019
c/o Credit Suisse
Securities (USA) LLC
Eleven Madison
Avenue
New York, New
York 10010
and
c/o Lehman Brothers
Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and
Gentlemen:
Equitable
Resources, Inc., a Pennsylvania corporation (the
“Company”), proposes to issue and sell to the several
Underwriters named in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
of 7,500,000 shares (the “Firm Shares”) of the
Company’s common stock, no par value (the “Common
Stock”). The Company also proposes to sell at the
Underwriters’ option an aggregate of up to 1,125,000
additional shares of the Company’s Common Stock (the
“Option Shares”) as set forth below.
As the Representatives,
you have advised the Company (a) that you are authorized to
enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are willing, acting
severally and not jointly, to purchase the numbers of Firm Shares
set forth opposite their respective names in Schedule 1, plus their
pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the
several Underwriters. The Firm Shares and the Option Shares
(to the extent the aforementioned option is exercised) are herein
collectively called the “Shares.”
The Company has
prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(File No. 333-148154), which contains a base prospectus (the
“Base Prospectus”), to be used in connection with the
public offering and sale of equity securities, including the
Shares, and other securities of the Company under the Securities
Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities
Act”), and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act. Such
registration statement, including the financial statements,
exhibits and schedules thereto, in the form in which it became
effective under the Securities Act, including any required
information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act,
is called the “Registration Statement.” The term
“Prospectus” shall mean the final prospectus supplement
relating to the Shares, together with the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the date and
time that this Agreement is executed (the “Execution
Time”) by the parties hereto. The term
“Preliminary Prospectus” shall mean any preliminary
prospectus supplement relating to the Shares, together with the
Base Prospectus, that is first filed with the Commission pursuant
to Rule 424(b). Any reference herein to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents that are or are deemed
to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act prior to 6:00 p.m. on
May 6, 2008 (the “Initial Sale Time”). All
references in this Agreement to the Registration Statement, the
Preliminary Prospectus, 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”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” (or other references
of like import) in the Registration Statement, the Prospectus or
the Preliminary Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Preliminary Prospectus, as the
case may be, prior to the Initial Sale Time; and all references in
this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or the Preliminary Prospectus shall be
deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the
“Exchange Act”), which is or is deemed to be
incorporated by reference in the Registration Statement, the
Prospectus or the Preliminary Prospectus, as the case may be, after
the Initial Sale Time.
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and resale of the Shares, as follows:
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1.
Purchase, Sale and Delivery of the Firm Shares .
(a)
On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth,
the Company agrees to sell to the Underwriters and each Underwriter
agrees, severally and not jointly, to purchase, at a price of
$65.04 per share, the number of Firm Shares set forth opposite the
name of each Underwriter in Schedule 1 hereof, subject to
adjustments in accordance with Section 7 hereof.
(b)
Payment for the Firm Shares to be sold hereunder is to be made in
Federal (same day) funds against delivery of certificates therefor
to the Representatives for the several accounts of the
Underwriters. Such payment and delivery are to be made
through the facilities of The Depository Trust Company, New York,
New York at 10:00 a.m., New York time, on May 12, 2008 or
at such other time and date not later than five business days
thereafter as the Representatives and the Company shall agree upon,
such time and date being herein referred to as the “Closing
Date.” (As used herein, “business day”
means a day on which the New York Stock Exchange is open for
trading and on which banks in New York are open for business and
are not permitted by law or executive order to be
closed.)
(c)
In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several
Underwriters to purchase the Option Shares at the price per share
as set forth in the first paragraph of this Section 1.
The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date
and (ii) only once thereafter within 30 days after the date of
this Agreement, by you, as Representatives of the several
Underwriters, to the Company setting forth the number of Option
Shares as to which the several Underwriters are exercising the
option and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option
Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than three nor later than
10 full business days after the exercise of such option, nor in any
event prior to the Closing Date (such time and date being herein
referred to as the “Option Closing Date”). If the
date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as
the Option Closing Date. The number of Option Shares to be
purchased by each Underwriter shall be in the same proportion to
the total number of Option Shares being purchased as the number of
Firm Shares being purchased by such Underwriter bears to the total
number of Firm Shares, adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Shares by the
Underwriters. You, as Representatives of the several
Underwriters, may cancel such option at any time prior to its
exercise or expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the
option is exercised, payment for the Option Shares shall be made on
the Option Closing Date in Federal (same day funds) through the
facilities of The Depository Trust Company in New York, New York
drawn to the order of the Company.
(d)
The Company acknowledges and agrees that: (i) the
purchase and sale of the Shares pursuant to this Agreement,
including the determination of the public offering price of the
Shares, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluation
and
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understanding
and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the
process leading to such transaction each Underwriter is and has
been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders,
creditors or employees or any other party; (iii) no
Underwriter has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Company with respect to
any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in
this Agreement; (iv) the several Underwriters and their
respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the
Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or
fiduciary relationship; and (v) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
This Agreement
supersedes all prior written agreements and understandings (whether
written or oral) between the Company and the several Underwriters
with respect to the subject matter hereof. The Company hereby
waives and releases, to the fullest extent permitted by law, any
claims that the Company may have against the several Underwriters
with respect to any breach or alleged breach of agency or fiduciary
duty.
2.
Representations and Warranties of the Company . The
Company represents and warrants to each Underwriter
that:
(a)
Compliance with Registration Requirements . The Company
meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has become
effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated or threatened by the Commission, and any request on
the part of the Commission for additional information has been
complied with.
At the respective
times the Registration Statement and any post-effective amendments
thereto (including the filing with the Commission of the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2007 (the “Annual Report on
Form 10-K”)) became effective and as of the Initial Sale
Time and as of the Closing Date, the Registration Statement and any
amendments thereto (i) complied and will comply in all
material respects with the requirements of the Securities Act and
(ii) 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. At the date of the Prospectus and at the Closing
Date, neither the Prospectus nor any amendments or supplements
thereto included or will include an untrue statement of a material
fact or omitted or will 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.
Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement or any post-
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effective amendment or
the Prospectus or any amendments or supplements thereto made in
reliance upon and in conformity with information furnished to the
Company in writing by any of the Underwriters through the
Representatives expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
through the Representatives consists of the information described
as such in Section 5(b) hereof.
Each Preliminary
Prospectus and the Prospectus, at the time each was filed with the
SEC, complied in all material respects with the Securities Act, and
the Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Shares
will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(b)
Disclosure Package . The term “Disclosure
Package” shall mean (i) the Preliminary Prospectus dated
May 5, 2008, (ii) the issuer free writing prospectuses,
if any, identified in Annex I hereto and (iii) the information
included in Annex II hereto. As of the Initial Sale Time,
(a) the Disclosure Package did not and (b) each
electronic road show, when taken together as a whole with the
Disclosure Package, did not, contain 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. The preceding
sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information
described as such in Section 5(b) hereof.
(c)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus
(i) at the time they were or hereafter are filed with the
Commission, complied or will comply in all material respects with
the requirements of the Exchange Act and (ii) when read
together with the other information in the Disclosure Package, at
the Initial Sale Time, and when read together with the other
information in the Prospectus, at the date of the Prospectus and at
the Closing Date, did not or will not include an 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.
(d)
Company is a Well-Known Seasoned Issuer . (i) At the
time of filing the Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act
or form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) of the Securities Act) made any
offer relating to the Shares in reliance on the exemption of
Rule 163 of the Securities Act, and (iv) as of the
Execution Time, the Company was and is a “well known seasoned
issuer” as defined in Rule 405 of the Securities
Act. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405 of the
Securities Act, that automatically became effective not more than
three years prior to the Execution Time; the Company has not
received from the
5
Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act
objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration form.
(e)
Company is not an Ineligible Issuer . (i) At the time of
filing the Registration Statement and (ii) as of the Execution
Time (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405 of the Securities
Act), without taking account of any determination by the Commission
pursuant to Rule 405 of the Securities Act that it is not
necessary that the Company be considered an Ineligible
Issuer.
(f)
Issuer Free Writing Prospectuses . Each issuer free
writing prospectus, as defined in Rule 433 under the
Securities Act (each, an “Issuer Free Writing
Prospectus”), as of its issue date and at all subsequent
times through the completion of the offering of Shares under this
Agreement or until any earlier date that the Company notified or
notifies the Representatives as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, the Preliminary Prospectus or the
Prospectus. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Preliminary Prospectus
or the Prospectus the Company has promptly notified or will
promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information
described as such in Section 5(b) hereof.
(g)
Distribution of Offering Material By the Company . The
Company has not distributed and will not distribute, prior to the
later of the Closing Date and the completion of the
Underwriters’ distribution of the Shares, any offering
material in connection with the offering and sale of the Shares
other than the Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus reviewed and consented to by the
Representatives and included in Annex I hereto or the Registration
Statement.
(h)
No
Applicable Registration or Other Similar Rights . There
are no persons with registration or other similar rights to have
any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly
waived.
(i)
Financial Statements. The financial statements and the
related notes thereto included or incorporated by reference in the
Disclosure Package and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the financial
position of the Company and its subsidiaries as of the dates
indicated and the results of their operations and the changes in
their cash flows for the
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periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby except as may be
expressly stated in the related notes thereto; and the other
financial information included or incorporated by reference in the
Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby.
(j)
No Material Adverse Change. Since the respective dates
as of which information is given in the Disclosure Package,
(i) there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
business, prospects, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, except as otherwise
disclosed or contemplated in the Disclosure Package; and
(ii) except as set forth or contemplated in the Disclosure
Package neither the Company nor any of its subsidiaries has entered
into any transaction or agreement material to the Company and its
subsidiaries taken as a whole other than in the ordinary course of
business.
(k)
Organization. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, with power and authority
(corporate or other) to own its properties and conduct its business
as described in the Disclosure Package and the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken
as a whole.
(l)
Subsidiaries . Each of the Company’s subsidiaries
has been duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation, with power and
authority (corporate or other) to own its properties and conduct
its business as described in the Disclosure Package and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, other
than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each subsidiary of the Company have been duly
authorized and validly issued, are fully-paid and non-assessable,
and (except in the case of foreign subsidiaries or directors’
qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims.
(m)
Due
Authorization. This Agreement has been duly authorized,
executed and delivered by the Company.
(n)
Common Stock . The outstanding shares of Common Stock of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable; the Shares to be issued and sold by
the Company have been duly authorized and when issued and paid for
as
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contemplated herein
will be validly issued, fully paid and non-assessable; and no
preemptive rights of stockholders exist with respect to any of the
Shares or the issue and sale thereof.
(o)
Description of Capital
Stock. The information set
forth under the caption “Description of Capital Stock”
in the Registration Statement and the Prospectus (and any similar
section or information contained in the Disclosure Package) is true
and correct. All of the Shares conform to the description
thereof contained in the Disclosure Package and the
Prospectus. The form of certificate for the Shares conforms
to the corporate law of the Commonwealth of
Pennsylvania.
(p)
No
Violation or Default . Neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company
and its subsidiaries taken as a whole or to the holders of the
Shares; neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in
violation or in default under its Restated Articles of
Incorporation or By-Laws; the issue and sale of the Shares and the
performance by the Company of all the provisions of its obligations
under this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement 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 is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the
Restated Articles of Incorporation or By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order,
license, filing, registration or qualification of or with any such
court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, filings, registrations
or qualifications that have been obtained or made by the Company
and are in full force under the Securities Act and as may be
required under state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters or from
the Pennsylvania Public Utility Commission in connection with the
issuance and sale of the Shares.
(q)
Legal Proceedings . Other than as set forth or
contemplated in the Disclosure Package and the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or any
of their respective properties or to which the Company or any of
its subsidiaries is or may be a party or to which any property of
the Company or any of its subsidiaries or to which the Company or
any of its subsidiaries is or may be subject which, if determined
adversely to the Company or any of its subsidiaries, could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries
taken as a whole and, to the best of the Company’s
8
knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(r)
Property . The Company and its subsidiaries have good and
marketable title in fee simple to all items of real property and
good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects
except such as are described or referred to in the Disclosure
Package and the Prospectus or such as do not materially 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 and its
subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
existing 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 its
subsidiaries.
(s)
Investment Company Act . The Company is not and, after
giving effect to the offering and sale of the Shares, will not be
an “investment company” or entity
“controlled” by an “investment company”, as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”).
(t)
Taxes . Except to the extent that any such failures or
deficiencies would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken
as a whole, (i) the Company and its subsidiaries have filed
all federal, state, local and foreign tax returns which have been
required to be filed and have paid all taxes shown thereon and all
assessments received by them or any of them to the extent that such
taxes have become due and are not being contested in good faith and
(ii) except as disclosed in the Disclosure Package and the
Prospectus, there is no tax deficiency which has been asserted or
threatened against the Company or any of its
subsidiaries.
(u)
Conduct of Business . Each of the Company and its
subsidiaries owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as conducted as of the date hereof, except
where the failure to so own or possess or to have so obtained or
made would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole, and
neither the Company nor any such subsidiary has received any actual
notice of any proceeding, relating to the revocation or
modification of any such license, permit, certificate, consent,
order, approval or other authorization, except as described in the
Disclosure Package and the Prospectus; each of the Company and its
subsidiaries is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date
hereof, except where the failure to be in compliance would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole; and the Company and
its subsidiaries are in compliance with the applicable provisions
of the Sarbanes-Oxley Act of 2002 and the rules and
regulations of the Commission adopted pursuant thereto as such
rules and regulations currently apply to the Company and its
subsidiaries, except
9
for where the failure
to be in compliance would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken
as a whole.
(v)
Environmental Compliance . The Company and its
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses, (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, and (iv) are not aware of any administrative or
judicial action being contemplated by governmental authorities
relating to Environmental Laws; neither the Company nor any of its
subsidiaries are subject to any consent decree or compliance or
administrative order issued pursuant to, or are the subject
of any pending investigation or litigation under, applicable
Environmental Laws except for such actions, decrees, orders or
investigations which do not and are not reasonably expected to have
a material adverse effect on, or cause material changes to, the
general affairs, business, prospects, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole; and neither the
Company nor any of its subsidiaries is a party to a governmental
proceeding arising under any Environmental Law which involves
potential monetary sanctions, exclusive of interests and costs, of
$100,000 or more.
(w)
Environmental Costs . In the ordinary course of business,
the Company reviews the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license
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