Exhibit 1.1
PENN VIRGINIA
CORPORATION
(a Virginia corporation)
3,500,000 Shares of Common
Stock
(par value $0.01 per share)
Underwriting
Agreement
May 18, 2009
J.P. Morgan Securities
Inc.
277 Park Avenue
New York, New York 10172
RBC Capital Markets
Corporation
One Liberty Plaza
165 Broadway
New York, New York 10006
Ladies and Gentlemen:
Penn Virginia Corporation, a
Virginia corporation (the “ Company ”), proposes
to issue and sell to J.P. Morgan Securities Inc. and RBC Capital
Markets Corporation (together, the “ Underwriters
”), an aggregate of 3,500,000 shares of Common Stock, par
value $0.01 per share, of the Company (the “ Underwritten
Shares ”) and, at the option of the Underwriters, up to
an additional 525,000 shares of Common Stock of the Company (the
“ Option Shares ”). The Underwritten Shares and
the Option Shares are herein referred to as the “
Shares ”. The shares of Common Stock of the Company to
be outstanding after giving effect to the sale of the Shares are
herein referred to as the “ 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 ”), a registration statement on Form
S-3 (File No. 333-143852), including a prospectus (the “
Basic Prospectus ”), relating to securities to be
issued from time to time by the Company. The Company has also
filed, or proposes to file, with the Commission pursuant to Rule
424 under the Securities Act a preliminary prospectus supplement
dated May 18, 2009 specifically relating to the Shares (the
“ Preliminary Prospectus Supplement ”). The
registration statement, as amended at the date of this Agreement,
including the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the
registration statement (“ Rule 430 Information
”), is referred to herein as the “ Registration
Statement ”; and as used herein, the term “
Preliminary Prospectus ” means the Basic Prospectus as
supplemented by the Preliminary Prospectus Supplement and the term
“ Prospectus ” means the Basic Prospectus as
supplemented by the prospectus supplement specifically relating to
the Shares in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities
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Act) in connection with confirmation of sales of
the Shares. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Statement
and the Prospectus. References herein to the Registration
Statement, the 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 most recent effective date of the
Registration Statement or the date of the Preliminary Prospectus or
the Prospectus, as the case may be. The terms
“supplement,” “amendment” and
“amend” as used herein with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (the “
Exchange Act ”) subsequent to the date of this
Agreement which are deemed to be incorporated by reference
therein.
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 information referred to in the next
succeeding sentence, the “ Time of Sale Information
”): the Preliminary Prospectus Supplement, and each “
free-writing prospectus ” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex B hereto. In
addition, you have informed us that the Underwriters have or will
orally provide the pricing information set out on Annex C to
prospective purchasers prior to confirming sales. If, subsequent to
the date of this Agreement, the Company and the Underwriters have
determined that such Time of Sale Information included an untrue
statement of a material fact or omitted a statement of material
fact necessary to make the information therein, in the light of the
circumstances under which it was made, not misleading and have
agreed to provide an opportunity to purchasers of the Shares to
terminate their old purchase contracts and enter into new purchase
contracts, then “Time of Sale Information” will refer
to the information available to purchasers at the time of entry
into the first such new purchase contract.
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 (the “
Purchase Price ”) of $18.60.
In addition, 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 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 (or such number increased as
set forth in Section 10 hereof) bears to the aggregate number
of Underwritten Shares being
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purchased from the Company by the several
Underwriters, subject, however, to such adjustments to eliminate
any fractional Shares as the Underwriters 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 only for the purpose of covering
overallotments which may be made in connection with the offering
and distribution of the Underwritten Shares, on or before the
thirtieth day following the date of this Agreement, by written
notice from the Underwriters 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
(as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 10 hereof). 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
Underwriters 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 Shares shall be
made by wire transfer in immediately available funds to the account
specified by the Company to the Underwriters in the case of the
Underwritten Shares, at the offices of Davis Polk &
Wardwell, New York, NY 10017 at 10:00 A.M. New York City time on
May 22, 2009, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter,
as the Underwriters and the Company may agree upon in writing or,
in the case of the Option Shares, on the date and at the time and
place specified by the Underwriters in the written notice of their
election to purchase such Option Shares. The time and date of such
payment and delivery for the Underwritten Shares is referred to
herein as the “ Closing Date ” and the time and
date for such payment and delivery for the Option Shares, if other
than the Closing Date, are herein referred to as an “
Additional Closing Date ”.
Payment for the Shares to be
purchased on the Closing Date or an Additional Closing Date, as the
case may be, shall be made against delivery to the Underwriters for
their respective accounts of the Shares to be purchased on such
date in definitive form registered in such names and in such
denominations as the Underwriters shall request in writing not
later than two full business days prior to the Closing Date or an
Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of the Shares duly paid
by the Company.
(d) The Company acknowledges and
agrees that each Underwriter is 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, the Underwriters are not advising
the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction.
The
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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 the
Underwriters that:
(a) Preliminary Prospectus .
No order preventing or suspending the use of the Preliminary
Prospectus has been issued by the Commission, and the 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 expressly for use in the 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
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter 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 B
hereto and other written communications approved in writing in
advance by the Underwriters. 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 Time of
Sale Information accompanying, delivered or filed prior to the
first use 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
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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
expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and
Prospectus . The Registration Statement is an “automatic
effective 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 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 date of this Agreement
and any other 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 and as of each Additional Closing Date, as the case
may be, 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 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 became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Securities 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 financial statements and the related notes thereto of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Time of Sale
Information and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange
Act, as
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applicable, and present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods
covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly in all material respects the information required to be
stated therein.
(g) No Material Adverse
Change . Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any material change in the
capital stock or material change in the long-term debt of the
Company or any of its subsidiaries, or any material dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, other than the
Company’s regular quarterly dividend declared on May 6,
2009 and payable on June 4, 2009, or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management,
financial position, stockholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken
as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is
material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is
material to the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, in each case that is material to the Company
and its subsidiaries taken as a whole, except in each case as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(h) Organization and Good
Standing . The Company, each of its significant subsidiaries,
Penn Virginia GP Holdings, L.P. (“ PVG ”) and
Penn Virginia Resource Partners, L.P. (“ PVR ”)
have been duly organized or formed, as applicable, and are validly
existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business
and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the business,
properties, financial position, stockholders’ equity, results
of operations or prospects of the Company and its subsidiaries
taken as a whole (a “ Material Adverse Effect
”). The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Schedule 2 to this Agreement. The
subsidiaries listed in Schedule 3 to this Agreement are the only
significant subsidiaries of the Company (the “ Significant
Subsidiaries ”). For the avoidance of doubt, Schedule 3
does not include the significant subsidiaries of PVR, unless such
subsidiaries are also significant subsidiaries of the
Company.
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(i) Ownership of PVG GP, LLC
. The Company owns a 100% membership interest in PVG GP, LLC
(“ GP ”); such membership interest has been duly
authorized and validly issued in accordance with the limited
liability company agreement of GP (the “ GP LLC
Agreement ”) and is fully paid (to the extent required
under the GP LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of
the Delaware Limited Liability Company Act (the “ Delaware
LLC Act ”)); and the Company owns such membership
interest free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of
any third party.
(j) Ownership of PVG .
(i) GP is the sole general partner of PVG with a non-economic
general partner interest in PVG; such general partner interest has
been duly authorized and validly issued in accordance with the
Amended and Restated Agreement of Limited Partnership of PVG (the
“ PVG Partnership Agreement ”); and GP owns such
general partner interest free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party; and (ii) the Company
owns an 76.8% limited partner interest in PVG; such limited partner
interest has been duly authorized and validly issued in accordance
with the PVG Partnership Agreement and the Company owns such
limited partner interest free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party.
(k) Ownership of Penn Virginia
Resource GP, LLC . PVG owns a 100% membership interest in Penn
Virginia Resource GP, LLC (“ PVR GP ”); such
membership interest has been duly authorized and validly issued in
accordance with the limited liability company agreement of PVR GP
(the “ PVR GP Agreement ”) and is fully paid (to
the extent required under the PVR GP Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 18-607
and 18-804 of the Delaware LLC Act); and PVG and its affiliates own
such membership interest free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party.
(l) Ownership of PVR . PVR GP
is the sole general partner of PVR with a 2.0% general partner
interest in PVR; such general partner interest has been duly
authorized and validly issued in accordance with the Amended and
Restated Agreement of Limited Partnership of PVR (the “
PVR Partnership Agreement ”); and PVR GP owns such
general partner interest free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party.
(m) Capitalization . The
Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus; all the outstanding shares of capital stock of the
Company that will be outstanding immediately prior to the Closing
Date will have been duly and validly authorized and issued and will
be fully paid and non-assessable and will not be subject to any
pre-emptive or similar rights; except as described in or expressly
contemplated by the Time of Sale Information and the Prospectus,
there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock
or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable securities or any
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such rights, warrants or options; the capital
stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement, the
Time of Sale Information and the Prospectus; all of the issued
partnership interests, limited liability company interests or
shares of capital stock, as applicable, of each Significant
Subsidiary have been duly authorized and validly issued in
accordance with the organizational documents of such Significant
Subsidiary, and are (except for general partner interests) fully
paid (to the extent required under such Significant
Subsidiary’s organizational documents) and non-assessable,
except as such non-assessability may be affected by
Section 18-607 of the Delaware LLC Act, Sections 17-303 and
17-607 of the Delaware Revised Uniform Limited Partnership Act and
Sections 3-303 and 3-607 of the Texas Revised Limited Partnership
Act, as applicable; all shares of capital stock, limited liability
company interests or limited partnership interests (except for
directors’ qualifying shares or interests) of the Significant
Subsidiaries are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims other than
as described in loan or credit agreements filed as exhibits to the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2008 or Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2009.
(n) Due Authorization . The
Company has the corporate 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 by it of this Agreement and
the consummation by it of the transactions contemplated hereby has
been duly and validly taken.
(o) Underwriting Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company.
(p) The Shares . The Shares
to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid
for as provided herein, will be duly and validly issued and will be
fully paid and nonassessable and will conform to the descriptions
thereof in the Time of Sale Information and the Prospectus; and the
issuance of the Shares is not subject to any preemptive or similar
rights.
(q) No Violation or Default .
Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in 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; or (iii) in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of
clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) No Conflicts . The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation
of the transactions contemplated hereby will not (i) conflict
with or result in a breach or violation of any of the
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terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, 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, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority and, solely with respect to clause (i), except for such
breach, violation, default lien, charge or encumbrance that would
not be reasonably expected to have a Material Adverse
Effect.
(s) No Consents Required . No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority having jurisdiction over the Company is
required for the execution, delivery and performance by the Company
of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated hereby, except for
the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities
laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(t) Legal Proceedings .
Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there are no legal,
governmental or regulatory investigations, actions, suits or
proceedings pending 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 is or may be the subject and (ii) no such
investigations, actions, suits or proceedings are threatened or, to
the best knowledge of the Company, contemplated by any governmental
or regulatory authority, in the case of (i) or (ii) that
individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect or materially and adversely affect
the ability of the Company to perform its obligations hereunder;
(iii) 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 or
the Prospectus that are not so described in the Registration
Statement, the Time of Sale Information and the Prospectus; and
(iv) 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 and the
Prospectus.
(u) Independent Accountants .
KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries which are incorporated by reference in
the Registration Statement, the Time of Sale Information and the
Prospectus, are an independent registered public accounting firm
with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
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(v) Title to Real and Personal
Property . Except as otherwise disclosed in the Registration
Statement, Time of Sale Information and the Prospectus, the Company
and its subsidiaries have good and marketable title to, or have
valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of
the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of
title except those that (i) arise under loan or credit
agreements described in the Company’s Annual Report on Form
10-K for the year ended December 31, 2008 or filed as exhibits
to the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008 or Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 2009, or (ii) would
not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(w) Title to Intellectual
Property . The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses; and the
Company and its subsidiaries have not received any notice of any
claim of infringement or conflict with any such rights of
others.
(x) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so
described in such documents and in the Time of Sale
Information.
(y) Investment Company Act .
The Company is not and, 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 not be required to register as
an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, “
Investment Company Act ”).
(z) Taxes . The Company and
its subsidiaries have paid all federal, state, local and foreign
taxes (other than those which are being contested in good faith and
for which appropriate reserves have been established or which, if
not paid, would not reasonably be expected to have a Material
Adverse Effect) and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or assets
that would reasonably be expected to have a Material Adverse
Effect.
(aa) Licenses and Permits .
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess
or make the same would not, individually
10
or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course.
(bb) No Labor Disputes . No
labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the
Company, is contemplated or threatened, except as would not
reasonably be expected to have a Material Adverse
Effect.
(cc) Reserve Report Data .
The oil and gas reserve estimates of the Company and any of its
subsidiaries as of December 31, 2008 contained in the
Registration Statement, the Time of Sale Information and the
Prospectus have been based in part on reports prepared by
independent reserve engineers in accordance with the Commission
guidelines applied on a consistent basis throughout the periods
involved. Other than production of the reserves in the ordinary
course of business and intervening product price fluctuations or as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, the Company is not aware of any
facts or circumstances that, taken together, would reasonably be
expected to have a material adverse effect on the reserves or the
present value of the future net cash flows therefrom as described
in the Registration Statement, the Time of Sale Information or the
Prospectus.
(dd) Environmental Laws .
Except as disclosed in the Registration Statement, Time of Sale
Information or the Prospectus, (i) the Company and its
subsidiaries (x) are, and at all prior times within the last
five years were, in compliance with any and all applicable federal,
state and local laws, rules, regulations, requirements, decisions
and orders relating to the protection of human health or safety,
the environment, natural resources, hazardous or toxic substances
or wastes, pollutants or contaminants (collectively, “
Environmental Laws ”); (y) have received and are
in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and
(z) have not received notice of any actual or potential
liability under or relating to any Environmental Laws, including
for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, except in the case of each of (x), (y) or
(z) above, for any such failure to comply, or failure to
receive required permits, licenses, certificates or other
authorizations or approvals, or liability, as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (ii) there are no costs (including
capital expenditures), obligations or liabilities associated with
Environmental Laws or hazardous or toxic substances or wastes,
pollutants or contaminants of and relating to the Company or its
subsidiaries, except for such costs, obligations or liabilities as
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and (iii) there are no
proceedings that are pending or, to the knowledge of the Company or
any of its subsidiaries, threatened against the Company or any of
its subsidiaries under any Environmental Laws other than such
proceedings that would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(ee) Compliance With ERISA .
(i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ ERISA ”),
11
excluding any multi-employee plan, within the
meaning of Section 3(37) of ERISA, for which the Company or
any member of its “ Controlled Group ” (defined
as any organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the “ Code ”))
would have any liability (each, a “ Plan ”) has
been maintained in material compliance with its terms and the
requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code; (ii)
no prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code, has occurred with
respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption; (iii) none of the
Company, any member of its Controlled Group and any predecessor
thereof contributed to, or has in the past contributed to, any
multiemployer plan, as defined in Section 3(37) of ERISA; (iv)
for each Plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no
“ accumulated funding deficiency ” as defined in
Section 412 of the Code, whether or not waived, has occurred
or is reasonably expected to occur; (v) no “ reportable
event ” (within the meaning of Section 4043(c) of
ERISA) has occurred or is reasonably expected to occur; and
(vi) neither the Company nor any member of the Controlled
Group has incurred, nor reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or
premiums to the PBGC, in the ordinary course and without default)
in respect of a Plan, except, in each case, as would not reasonably
expected to have, individually or in the aggregate, a Material
Adverse Effect.
(ff) Disclosure Controls .
The Company maintains an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company carried out evaluations of the effectiveness of its
disclosure controls and procedures as required by Rule 13a-15 of
the Exchange Act.
(gg) Accounting Controls .
The Company maintains systems of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that comply with the requirements of the Exchange Act
and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles,
including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. There
are no material weaknesses in the Company’s internal
controls.
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(hh) Insurance . The Company
and its subsidiaries have insurance in such amounts and insuring
against such losses and risks as are reasonably adequate to protect
the Company and its subsidiaries and their respective
businesses.
(ii) No Unlawful Payments .
Neither the Company nor any of its subsidiaries 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 or
any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(jj) Compliance with Money
Laundering Laws . The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(kk) Compliance with OFAC .
None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or Affiliate
of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury (“ OFAC
”); and the Company will not directly or indirectly use the
proceeds of the offering of the Shares hereunder, or lend,
contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(ll) No Restrictions on PVR and
PVG . Neither PVG nor PVR is currently prohibited, directly or
indirectly, under any agreement or other instrument to which it is
a party or is subject, from paying any Quarterly Distributions of
Available Cash (as such terms are defined in the PVG Partnership
Agreement and the PVR Partnership Agreement) on their respective
partnership interests.
(mm) No Broker’s Fees .
Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the
Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Shares.
(nn) No Registration Rights .
No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the
Securities Act by reason of the issuance and sale of the
Shares.
13
(oo) No Stabilization . The
Company has not taken, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any
stabilization or manipulation of the price of the
Shares.
(pp) Statistical and Market
Data . Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the
Time of Sale Information and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material
respects.
(qq) Sarbanes-Oxley Act . The
Company is, and to the knowledge of the Company, its officers and
directors are, in compliance in all material respects with the
applicable provisions of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection
therewith.
(rr) 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 time period required by such rule (without
giving effect to the proviso therein) and in any event prior to the
Closing Date.
4. Further Agreements of the
Company . The Company covenants and agrees with each
Underwriter that:
(a) Required Filings . The
Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or
430C under the Securities Act, will file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Securities
Act; and will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection
with the offering or sale of the Shares; and the Company will
furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City
time, on the business day next succeeding the date of this
Agreement in such quantities as the Underwriters may reasonably
request. The Company will pay the registration fees for this
offering within the time period required by Rule 456 (b)(i) under
the Securities Act prior to the Closing Date.
(b) Delivery of Copies . The
Company will deliver, without charge, as many copies of the
Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) and each Issuer Free
Writing Prospectus as the Underwriters may reasonably request. As
used herein, the term “Prospectus Delivery Period”
means such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law
to be delivered (or required to be delivered but for Rule 172 under
the Securities Act) in connection with sales of the Shares by any
Underwriter or dealer.
14
(c) Amendments or Supplements,
Issuer Free Writing Prospectuses . Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free
Writing Prospectus, and before filing any amendment or supplement
to the Registration Statement or the Prospectus, the Company will
furnish to the Underwriters and counsel for the Underwriters a copy
of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus
or file any such proposed amendment or supplement to which the
Underwriters reasonably object.
(d) Notice to the
Underwriters . The Company will advise the Underwriters
promptly, and confirm such advice in writing, (i) when any
amendm
