14,500,000 Shares of Common
Stock
(Par Value $0.01 Per
Share)
J.P. Morgan
Securities Inc.
As Representative of the several Underwriters listed in
Schedule 1 hereto
c/o J.P. Morgan
Securities Inc.
383 Madison Avenue
New York, New York 10179
McMoRan
Exploration Co., 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 representative (the “
Representative ”), an aggregate of 14,500,000 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 2,175,000 shares of Common
Stock, par value $0.01 per share, 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, par value $0.01 per share of
the Company (the “ Common Stock ”) 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 ”) a registration statement on Form S-3
(File No. 333-144496), which contains a base prospectus (the
“ Base Prospectus ”), to be used in connection
with the public offering and sale of the Shares. Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto, in the form in which it was declared
effective by the Commission under the Securities Act of 1933 and
the rules and regulations promulgated thereunder (collectively, 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 or the
Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder (collectively, the “ Exchange
Act ”), is called the “ Registration
Statement ”. Any preliminary prospectus supplement to the
Base Prospectus that describes the Shares and the offering thereof
and is used prior to filing of the final prospectus supplement
relating to the Shares is called, together with the Base
Prospectus, a “ Preliminary Prospectus ”. The
term “ Prospectus ” shall mean the final
prospectus supplement relating to the Shares that is first filed
pursuant to Rule 424(b) after the date and time that this Agreement
is executed and delivered by the parties hereto, together with the
Base Prospectus. Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Exchange Act, that are incorporated by reference in such
preliminary prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include the filing of any document under the
Exchange Act that is incorporated by reference in the Registration
Statement, including, without limitation, any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement.
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, the “ Time of Sale
Information ”): a Preliminary Prospectus dated
June 15, 2009, and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act)
listed on Schedule 3 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 (the “ Purchase Price ”) of
$5.4769.
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.
2
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 purchased from
the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the
Representative in its 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 Representative 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 Representative 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 Representative
in the case of the Underwritten Shares, at the offices of Davis
Polk & Wardwell, 450 Lexington Avenue, New York, New York at
10:00 A.M. New York City time on June 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 Representative 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
Representative 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, is
herein referred to as the “ Additional Closing Date
”.
3
Payment for the
Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the Representative for the respective accounts of the several
Underwriters of the Shares to be purchased on such date in
definitive form registered in such names and in such denominations
as the Representative shall request in writing not later than two
full business days prior to the Closing Date or the Additional
Closing Date, as the case may be, with any transfer taxes payable
in connection with the sale of such Shares duly paid by the
Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company unless the
Representative shall otherwise instruct. The certificates for the
Shares will be made available for inspection and packaging by the
Representative at the office of Davis Polk & Wardwell set forth
above not later than 1:00 P.M., New York City time, on the business
day prior to the Closing Date or the Additional Closing Date, as
the case may be.
(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
the Representative 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 as of the date of this
Agreement, the Closing Date and each Additional Closing Date
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
4
upon and in
conformity with the Underwriter Information as defined in Section
7(b) hereof.
(b) Time of
Sale Information . The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date and as of the Additional
Closing Date, as the case may be, 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 the
Underwriter Information as defined in Section 7(b) hereof. 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 Registration Statement, 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 Schedule 3 hereto, each electronic road show and any
other written communications approved in writing in advance by the
Representative. 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 filed
prior to the first use of such Issuer Free Writing Prospectus, did
not, and at the Closing Date and as of the Additional Closing Date,
as the case may be, 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 the Underwriter
Information as defined in Section 7(b) hereof. Each such Issuer
Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Shares or until any earlier date that the
5
Company
notified or notifies the Representative as described in
Section 4(e), did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference
therein and any Preliminary Prospectus deemed to be a part thereof
that has not been superseded or modified.
(d)
Registration Statement and Prospectus . The Registration
Statement has been declared effective by the Commission. 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 applicable effective date of the
Registration Statement and any post-effective 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 the Additional Closing Date, as the case may
be, the Prospectus does 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, 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 the
Underwriter Information as defined in Section 7(b)
hereof.
(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 Exchange Act 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 Securities 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.
6
(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 applicable, and present fairly 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 U.S. generally
accepted accounting principles applied on a consistent basis
throughout the periods covered thereby except as otherwise
disclosed in the financial statement footnotes, 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 information included or incorporated
by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and
presents fairly the information shown thereby.
(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 change in the capital
stock, long-term debt, notes payable or current portion of
long-term debt of the Company or any of its subsidiaries, or any
dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock
except dividends declared and paid pursuant to the terms of the
Company’s outstanding preferred stock, or any material
adverse change, or any development that would reasonably be
expected to have a 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 material 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, except in each case as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus.
7
(h)
Organization and Good Standing . The Company and each of its
Identified Subsidiaries (as defined below) have been duly organized
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, have a material adverse effect on the business,
properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole or on the performance by the Company
of its obligations under this Agreement (a “ Material
Adverse Effect ”). As used in this Agreement, “
Identified Subsidiary ” means the subsidiaries listed
in Schedule 2 to this Agreement. The Company does not have any
significant subsidiaries that are not listed on Schedule 2
hereto.
(i)
Capitalization . The Company has an authorized
capitalization as set forth in the Registration Statement, the Time
of Sale Information and the Prospectus under the heading “
Capitalization ”; all the outstanding shares of
capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable and are not
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 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; and all the
outstanding shares of capital stock or other equity interests of
each subsidiary owned, directly or indirectly, by the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party.
(j) Stock
Options . With respect to the stock options (the “
Stock Options ”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “
Company Stock Plans ”), (i)
8
each Stock
Option intended to qualify as an “ incentive stock
option ” under Section 422 of the Code so qualifies,
(ii) each grant of a Stock Option was duly authorized no later
than the date on which the grant of such Stock Option was by its
terms to be effective (the “ Grant Date ”) by
all necessary corporate action, including, as applicable, approval
by the board of directors of the Company (or a duly constituted and
authorized committee thereof) and any required stockholder approval
by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was
made in accordance with the terms of the Company Stock Plans, the
Exchange Act and all other applicable laws and regulatory rules or
requirements, including the rules of the New York Stock Exchange
and any other exchange on which Company securities are traded,
(iv) the per share exercise price of each Stock Option was
equal to or greater than the fair market value of a share of Common
Stock on the applicable Grant Date and (v) each such grant was
properly accounted for in accordance with GAAP in the financial
statements (including the related notes) of the Company and
disclosed in the Company’s filings with the Commission in
accordance with the Exchange Act and all other applicable laws;
provided, however, that the Company has granted Stock Options
pursuant to Company Stock Plans authorized by the Board of
Directors that were subsequently approved by shareholders with fair
market value of a share of Common Stock being the fair market value
at the time the Board of Directors authorized such grant. The
Company has not knowingly granted, and there is no and has been no
policy or practice of the Company of granting, Stock Options prior
to, or otherwise coordinate the grant of Stock Options with, the
release or other public announcement of material information
regarding the Company or its subsidiaries or their results of
operations or prospects.
(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 by it of this
Agreement and the consummation by it of the transactions
contemplated thereby or by the Time of Sale Information and the
Prospectus 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 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 Registration Statement,
the Time of Sale Information and the Prospectus; the Shares and all
other
9
shares of
outstanding capital stock of the Company are consistent with the
information in the time of Sale Information and conform to the
description thereof contained in the Prospectus; and the
shareholders of the Company do not have any preemptive or similar
rights with respect to the Shares.
(n) 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.
(o) 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 by this Agreement
or the Time of Sale Information and the Prospectus will not
(i) conflict with or result in a breach or violation of any of
the 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, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or
default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) No Consents
Required . No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority 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 by this Agreement, or the Time of Sale
Information and the Prospectus, except for the registration of the
Shares
10
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.
(q) Legal
Proceedings . Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, there
are no legal, governmental or regulatory investigations, actions,
suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect or materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement; no such investigations, actions, suits or proceedings
are threatened or, to the best knowledge of the Company,
contemplated by any governmental or regulatory authority or
threatened by others; and (i) 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 (ii) there are no 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, the Time of Sale Information 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.
(r) Independent
Accountants . Ernst & Young LLP, who have certified certain
financial statements of the Company and its subsidiaries 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.
(s) Title to
Real and Personal Property . The Company and its subsidiaries
have good and marketable title in fee simple 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) do not materially interfere with the use
made and proposed to be made of such property by the Company and
its subsidiaries, (ii) are disclosed in the Registration
Statement, the Time of Sale Information or the Prospectus or
(iii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
11
(t) 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 in all material respects of
their respective businesses; and the conduct of their respective
businesses will not conflict in any material respect with any such
rights of others, and the Company and its subsidiaries have not
received any notice of any claim of infringement or conflict with
any such rights of others.
(u) 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.
(v) 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 ” or an
entity “ controlled ” by 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 ”).
(w) Taxes .
The Company and its subsidiaries have paid all federal, state,
local and foreign taxes 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.
(x) 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 or in the aggregate, have
a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus,
12
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.
(y) 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 have a Material Adverse Effect.
(z) Compliance
With Environmental Laws . (i) Except as described in the
Time of Sale Information or the Prospectus, the Company and its
subsidiaries (A) are, and at all prior times were, in
compliance with any and all applicable federal, state, local and
foreign 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 ”); (B) 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
(C) 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, and have no knowledge of any event or condition that
would reasonably be expected to result in any such notice, and
(ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (i) and
(ii) above, for any such failure to comply, or failure to
receive required permits, licenses or approvals, or cost or
liability, as would not, individually or in the aggregate, have a
Material Adverse Effect; and (iii) except as described in each
of the Time of Sale Information and the Prospectus, (A) there
are no proceedings that are pending, or that are known to be
contemplated, against the Company or any of its subsidiaries under
any Environmental Laws in which a governmental entity is also a
party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed,
(B) the Company and its subsidiaries are not aware of any
issues regarding compliance with Environmental Laws, or liabilities
or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive
position of the Company and its subsidiaries, and (C) none of
the Company and its subsidiaries anticipates material capital
expenditures relating to any Environmental Laws.
(aa) Compliance
With ERISA . (i) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement
Income
13
Security Act of
1974, as amended (“ 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 compliance
with its terms and the requirements of any applicable statutes,
orders, rules and regulations,
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