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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
December 11, 2023
GULFPORT ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware |
|
001-19514 |
|
86-3684669 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification Number) |
713 Market Drive
Oklahoma City, Oklahoma |
|
73114 |
(Address of principal executive offices) |
|
(Zip code) |
(405) 252-4600
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock, par value $0.0001 per share |
|
GPOR |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 8.01. Other Events.
On December 11, 2023, Gulfport Energy Corporation
(the “Company”) entered into an Underwriting Agreement (the “Underwriting Agreement”) with certain stockholders
of the Company listed in Schedule 2 thereto (the “Selling Stockholders”) and J.P. Morgan Securities LLC (the “Underwriter”),
relating to the offer and sale (the “Offering”) by the Selling Stockholders of 653,464 shares of common stock, par value $0.0001
per share, of the Company (the “Common Stock”), by the Selling Stockholders at a price
to the Underwriter of $128.21 per share. The Company did not sell any shares of Common Stock in the Offering and did not receive any proceeds
from the sale of the shares offered by the Selling Stockholders. The Offering closed on December 14, 2023.
The Underwriting Agreement
contains customary representations and warranties, agreements and obligations, closing conditions and termination provisions. The Company
and the Selling Stockholders have agreed to indemnify the Underwriter against certain liabilities and to contribute to payments the Underwriter
may be required to make in the event of any such liabilities.
The foregoing description of the Underwriting Agreement
is not complete and is qualified in its entirety by reference to the copy of the Underwriting Agreement, which is filed herewith as Exhibit
1.1 and incorporated into this Item 8.01 by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
GULFPORT ENERGY CORPORATION |
|
|
Date: December 14, 2023 |
By: |
/s/ Michael Hodges |
|
Name: |
Michael Hodges |
|
Title: |
Chief Financial Officer |
2
Exhibit 1.1
EXECUTION VERSION
GULFPORT ENERGY CORPORATION
653,464 Shares of Common Stock
Underwriting Agreement
December 11, 2023
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
The MainStay MacKay High Yield Corporate Bond Fund
and The MainStay VP High Yield Corporate Bond Portfolio (each, a “MacKay Selling Stockholder” and collectively, the “MacKay
Selling Stockholders”) and Silver Point Capital Fund, L.P., Silver Point Capital Offshore Master Fund, L.P., by SPCP Offshore IV,
Inc., its designated affiliate, Silver Point Distressed Opportunities Fund, L.P., and Silver Point Distressed Opportunity Institutional Partners, L.P. (each, a “Silver Point Selling Stockholder” and collectively, the “Silver Point Selling Stockholders” and, together
with the MacKay Selling Stockholders, the “Selling Stockholders”), propose to sell to J.P. Morgan Securities LLC (the “Underwriter”)
an aggregate of 653,464 shares of common stock, par value $0.0001 per share, of Gulfport Energy Corporation, a Delaware corporation (the
“Company” and, its shares of common stock, the, “Common Stock, and such 653,464 shares of Common Stock being hereinafter
referred to as the “Shares”). References herein to the “Company” include Gulfport Energy Corporation prior to
and after its reorganization on May 17, 2021.
The Company and each Selling Stockholder hereby
confirm their agreement with the Underwriter 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 (File No. 333- 264674), including a prospectus, relating to the Shares. Such registration statement, as amended
at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act
to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein
as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included
in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits
Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Shares. If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”),
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
Any reference in this underwriting agreement (this “Agreement”) to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be , and any reference to “amend”, “amendment” or “supplement” with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined
below), the Company had prepared the following information (collectively with the pricing information set forth on Annex A, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated December 11, 2023, and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time” means 4:30 P.M.,
New York City time, on December 11, 2023.
2. Purchase
of the Shares.
(a) Each
of the Selling Stockholders agrees, severally and not jointly, to sell the Shares to the Underwriter as provided in this Agreement, and
the Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, agrees to purchase at a price per share of $128.21 (the “Purchase Price”) from each of the Selling Stockholders the
number of Shares set forth opposite their respective names in Schedule 2 hereto.
(b) The
Selling Stockholders understand that the Underwriter intends to make a public offering of the Shares, and initially to offer the Shares
on the terms set forth in the Pricing Disclosure Package. The Selling Stockholders acknowledge and agree that the Underwriter may offer
and sell Shares to or through any affiliate of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to the account specified by the Selling Stockholders to the
Underwriter at the office of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, NY 10019 at 10:00 A.M. New York City time on
December 14, 2023, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as
the Underwriter and the Selling Stockholders may agree upon. The time and date of such payment for the Shares is referred to herein as
the “Closing Date.”
Payment for the Shares to be purchased on the Closing
Date shall be made against delivery to the Underwriter of the Shares to be purchased on such date with any transfer taxes payable in connection
with the sale of such Shares duly paid by the Selling Stockholders. Delivery of the Shares shall be made through the facilities of The
Depository Trust Company (“DTC”) unless the Underwriter shall otherwise instruct.
(d) Each
of the Company and each Selling Stockholder acknowledges and agrees that the Underwriter is acting solely in the capacity of an arm’s
length contractual counterparty to the Company and the Selling Stockholders 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, the Selling Stockholders or any other person. Additionally, the Underwriter is not advising the Company, the Selling Stockholders
or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Selling
Stockholders shall consult with their own advisors concerning such matters and each shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriter shall have no responsibility or liability to
the Company or the Selling Stockholders with respect thereto. Any review by the Underwriter of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriter and shall not be on
behalf of the Company or the Selling Stockholders. Moreover, each Selling Stockholder acknowledges and agrees that, although the Underwriter
may be required or choose to provide certain Selling Stockholders with certain Regulation Best Interest and Form CRS disclosures in connection
with the offering, the Underwriter is not making a recommendation to any Selling Stockholder to participate in the offering, enter into
a “lock-up” agreement, or sell any Shares at the price determined in the offering, and nothing set forth in such disclosures
is intended to suggest that the Underwriter is making such a recommendation.
3. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriter and the Selling Stockholders 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 included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities
Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted 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 or warranty with respect to any statements or omissions made in reliance upon
and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use
in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by the Underwriter consists of
the information described as such in Section 9(c) hereof.
(b) Pricing
Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of 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 or warranty
with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished
to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that
the only such information furnished by the Underwriter consists of the information described as such in Section 9(c) hereof. No statement
of material fact included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included
in the Pricing Disclosure Package 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 Underwriter in its capacity as such) has not prepared, made, used, 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 A hereto, each electronic road show and any other written communications
approved in writing in advance by the Underwriter. Each such Issuer Free Writing Prospectus complies in all material respects with the
Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the
extent required thereby) and does not conflict with the information contained in the Registration Statement or the Pricing Disclosure
Package, and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing
Prospectus, did not, and as of 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 or warranty with respect to any statements or omissions made in each such Issuer
Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information relating to the Underwriter furnished
to the Company in writing by the Underwriter expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being
understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 9(c)
hereof.
(d) Testing-the-Waters
Materials. The Company (i) has not engaged in, or authorized any other person to engage in, any Testing-the-Waters Communications,
other than Testing-the-Waters Communications with the prior consent of the Underwriter with entities that the Company reasonably believes
are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors
within the meaning of Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act; and (ii) has not distributed, or authorized
any other person to distribute, any Written Testing-the-Waters Communication without the prior written consent of the Underwriter. “Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Rule 163B under the Securities
Act. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act.
(e) Registration
Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule
405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice
of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been
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 of the Shares 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 and any such post-effective amendment complied and will
comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of
the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will comply in all material
respects with the Securities Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished
by the Underwriter consists of the information described as such in Section 9(c) hereof.
(f) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package,
when they were filed with the Commission 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 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 Pricing Disclosure Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(g) Financial
Statements. The consolidated financial statements included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus present fairly in all material respects the financial position of the Company and its consolidated
subsidiaries, in the case of financial statements of the Company and its consolidated subsidiaries as of and at the dates shown, and the
consolidated statements of operations, stockholders’ equity (deficit) and comprehensive income (loss) and cash flows of each of
the Company and its consolidated subsidiaries for the periods shown, and such financial statements of the Company, have been prepared
in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The other financial information pertaining to the Company included or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus are fairly presented in all material respects and prepared on a basis consistent with
the financial statements presented therein and the books and records of the Company. The Company and its consolidated subsidiaries do
not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable
interest entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46), not disclosed in the
Registration Statement, the Pricing Disclosure Package or the Prospectus. All disclosures included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such
term is defined by the rules and regulations of Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K
of the Securities Act, to the extent applicable. There are no financial statements that are required to be included in the Registration
Statement, the Pricing Disclosure Package or the Prospectus that are not included or incorporated as required.
(h) No
Material Adverse Change. Except as disclosed or incorporated by reference in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, since the end of the period covered by the latest audited financial statements included or incorporated by reference
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has been no change, nor any development
or event involving a prospective change that would, individually or in the aggregate, have a Material Adverse Effect (as defined below),
(ii) there has been no change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets
of the Company and its subsidiaries that would, individually or in the aggregate, have a Material Adverse Effect, (iii) there has
not been any material transaction entered into by the Company, other than transactions in the ordinary course of business and changes
and transactions described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (iv) there has not
been any obligation, direct or contingent, incurred by the Company which would, individually or in the aggregate, have a Material Adverse
Effect.
(i) Organization
and Good Standing. The Company has been duly incorporated and is existing and in good standing under the laws of the State of Delaware,
with power and authority (corporate or other) to own and/or lease its properties and conduct its business as described in the Registration
Statement, Pricing Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification,
except where the failure to so qualify or to be in good standing would not result, individually or in the aggregate, in a material adverse
effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries,
taken as a whole (a “Material Adverse Effect”).
(j) Capitalization.
The authorized equity capitalization of the Company is as set forth in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; all outstanding shares of capital stock of the Company (including the Shares to be sold by the Selling Stockholders)
have been duly and validly authorized and issued, are fully paid and nonassessable, and conform to the information in the Registration
Statement and the Pricing Disclosure Package and the Prospectus and to the description of such outstanding shares of capital stock of
the Company (including the Shares to be sold by the Selling Stockholders) contained in the Prospectus; the stockholders of the Company
have no preemptive rights with respect to the Common Stock; and none of the outstanding shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights of any security holder. Except as disclosed or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no outstanding (i) securities or obligations
of the Company convertible into or exchangeable for any capital stock of the Company, (ii) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any such convertible or exchangeable securities or obligations or (iii) obligations
of the Company to issue or sell any shares of capital stock, any such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(k) Subsidiaries.
Each subsidiary of the Company has been duly formed and is existing and in good standing under the laws of the jurisdiction of its organization,
with power and authority (corporate and other) to own and/or lease its properties and conduct its business as described in the Registration
Statement, Pricing Disclosure Package and the Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign
corporation or limited liability company, as the case may be, in good standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such qualification, except where the failure to so qualify or to be in good standing
would not result in a Material Adverse Effect; all of the issued and outstanding equity interests in each subsidiary of the Company that
is a corporation have been duly authorized and validly issued and are fully paid and nonassessable and all of the limited liability company
interests in each subsidiary of the Company that is a limited liability company have been duly authorized and validly issued in accordance
with the limited liability company agreement of such subsidiary and are fully paid (to the extent required under such subsidiary’s
limited liability company agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804
of the Delaware Limited Liability Company Act); and, in each case, except as otherwise disclosed in the Registration Statement, Pricing
Disclosure Package and the Prospectus with respect to the pledge thereof in connection with the Company’s revolving credit facility,
equity interests in each subsidiary of the Company are owned by the Company, directly or through subsidiaries, free from liens, encumbrances
and defects.
(l) 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 hereby has been duly and validly taken.
(m) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(n) Descriptions
of the Underwriting Agreement. This Agreement conforms in all material respects to the description thereof contained in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(o) 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 property or asset 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.
(p) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions
contemplated by this Agreement or the Pricing Disclosure Package 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, result in the termination, modification or acceleration
of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset 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 property, right
or asset 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, default, lien, charge or encumbrance that would not, individually or in
the aggregate, have a Material Adverse Effect.
(q) 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 and the
consummation of the transactions contemplated by this Agreement, 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 by the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and under applicable state securities laws in connection with the purchase and distribution of the
Shares by the Underwriter.
(r) Legal
Proceedings. Except as disclosed or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there are no pending actions, suits or proceedings (including to the Company’s knowledge any inquiries or investigations
by any court or governmental agency or body, domestic or foreign) against or affecting the Company, any of its subsidiaries, any of their
respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate
result in a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under
this Agreement or the consummation of the transactions contemplated by this Agreement; and no such actions, suits or proceedings (including
any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are, to the Company’s knowledge,
threatened or contemplated.
(s) Independent
Accountants. Grant Thornton LLP, who has certified certain financial statements of the Company and its subsidiaries, is 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.
(t) Title
to Real and Personal Property. Except as disclosed or incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the Company and its subsidiaries have (i) defensible title to all their interests in the oil and gas
properties described in the Registration Statement, the Pricing Disclosure Package and the Prospectus as being owned or leased by them,
title investigations having been carried out by the Company in accordance with customary practice in the oil and gas industry and (ii) good
and marketable title to all other real property, all other properties and assets described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus as owned by them, in each case free and clear of any security interests, mortgages, liens, encumbrances,
equities, claims and other title defects, except for those arising under the Company’s revolving credit facility as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus and such as do not adversely 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 that, in each case,
would not result in a Material Adverse Effect. The Company and its subsidiaries hold all leased real or personal property that is material
to them under valid and enforceable leases, and the terms and provisions of such leases do not materially interfere with the use made
or to be made of such real or personal property by the Company and its subsidiaries.
(u) Intellectual
Property. The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “Intellectual
Property Rights”) necessary to conducting the business now operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate result in a Material Adverse Effect.
(v) 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, suppliers or other affiliates of the Company or any of its subsidiaries,
on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that
is not so described, incorporated or included in such documents and in the Pricing Disclosure Package.
(w) Investment
Company Act. The Company is not 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, the “Investment Company Act”).
(x) 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 each of the Registration Statement, the Pricing Disclosure Package
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.
(y) Licenses
and Permits. The Company and its subsidiaries possess, and are in compliance with the terms and conditions of, all adequate certificates,
authorizations, franchises, licenses and permits issued by appropriate federal, state, local or foreign regulatory bodies (collectively,
“Licenses”) necessary to the ownership of their assets or to the conduct of the business now conducted or proposed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by them, except where the failure to have obtained
and complied with the same would not cause a Material Adverse Effect, and have not received any notice of proceedings relating to the
revocation or modification of any Licenses that, if determined adversely to the Company or any of its subsidiaries, would individually
or in the aggregate result in a Material Adverse Effect.
(z) No
Labor Disputes. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent that would result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of
cancellation or termination with respect to any collective bargaining agreement to which it is a party.
(aa) Certain Environmental Matters.
Except as disclosed or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the
Company and its subsidiaries: (i) (A) are and have been in compliance with any and all applicable federal, regional, state and local laws,
rules, regulations, ordinances, orders, judgments, settlements, codes and decrees relating to pollution or the protection of human health
and safety (to the extent related to exposure to hazardous or toxic materials), natural resources and the environment or imposing legally
enforceable standards of conduct concerning any Hazardous Materials (as hereinafter defined) (“Environmental Laws”); (B) have
obtained and are in compliance with all permits, licenses, registrations, authorizations, exemptions and other approvals (“Permits”)
required of them under applicable Environmental Laws to conduct their respective operations as they are currently being conducted; (C)
have not received written notice of, nor to the knowledge of the Company have, any liability under any Environmental Law including, without
limitation, any liability arising out of or in connection with the generation, use, manufacture, refinement, storage, treatment, handling,
transportation, disposal, release, or remediation of any Hazardous Materials by the Company or its subsidiaries or, to the knowledge of
the Company, any of its predecessors in interest; (D) are not party to or affected by any pending or, to the knowledge of the Company,
threatened action, suit or proceeding alleging that the Company or any of its subsidiaries is in violation of or otherwise liable under
any Environmental Law; (E) have not been notified that any of them is currently named as “potentially responsible party” under
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, in each of clauses (A) though (E), except
as would not individually or in the aggregate have a Material Adverse Effect, (ii) are not the subject of any pending, or threatened in
writing, proceeding under any Environmental Laws in which a governmental entity is also a party, other than such proceeding regarding
which it is reasonably believed no monetary sanctions of $300,000 or more will be imposed, the Company and its subsidiaries, (iii) are
not aware of any facts or issues regarding compliance with Environmental Laws that would reasonably be expected to have a material effect
on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (iv) none of the Company or its
subsidiaries currently anticipates incurring material capital expenditures relating to compliance with Environmental Laws. The term “Hazardous
Materials” means (A) any “hazardous substance” as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (B) any “solid waste” or “hazardous waste” as defined in the Resource Conservation
and Recovery Act, as amended, (C) any petroleum hydrocarbons, petroleum products, natural gas or oil, (D) any polychlorinated biphenyl
and per- or poly-fluorinated substances and (E) any pollutant or contaminant or hazardous or toxic chemical, material, waste or substance
regulated under any applicable Environmental Law.
(bb) 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”), for which the Company or any member of its “Controlled Group” (defined as any entity, whether or not
incorporated, that is under common control with the Company within the meaning of Section 4001(a)(14) of ERISA or any entity that would
be regarded as a single employer with the Company under Section 414(b),(c),(m) or (o) 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, 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) for each Plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy
the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no
Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and no Plan
that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or
“critical status” (within the meaning of Sections 304 and 305 of ERISA) (v) the fair market value of the assets of each Plan
exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi)
no “reportable event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred
or is reasonably expected to occur; (vii) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified,
and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification; (viii) 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 Pension Benefit Guarantee Corporation, in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA); and (ix) none of the
following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of contributions required
to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal year of the Company and its Controlled
Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled Group affiliates’ most
recently completed fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated post-retirement
benefit obligations” (within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount of such obligations
in the Company and its subsidiaries’ most recently completed fiscal year, except in each case with respect to the events or conditions
set forth in (i) through (ix) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect.
(cc) Disclosure Controls, Accounting
Controls and Compliance with the Sarbanes-Oxley Act. Except as set forth in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, the Company, its subsidiaries and the Board of Directors of the Company (the “Board”) are in compliance
with the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in connection therewith (“Sarbanes-Oxley”)
and all applicable rules of the Exchange (as defined below). The Company maintains a system of internal controls, including, but not limited
to, disclosure controls and procedures, internal controls over accounting matters and financial reporting and legal and regulatory compliance
controls (collectively, “Internal Controls”), that comply with Sarbanes-Oxley, the Securities Act, the Exchange Act, the rules
and regulations of the Commission, the auditing principles, rules, standards and practices applicable to auditors of “issuers”
(as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and the rules of the Exchange
(the “Securities Laws”) and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls are, and upon consummation
of the offering of the Shares will be, overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance
with the rules of the Exchange. The Company has not publicly disclosed or reported to the Audit Committee or the Board, and within the
next 90 days the Company does not reasonably expect to publicly disclose or report to the Audit Committee or the Board, a significant
deficiency, material weakness, change in Internal Controls or fraud involving management or other employees who have a significant role
in Internal Controls (each, an “Internal Control Event”), any violation of, or failure to comply with, the Securities Laws,
or any matter which, if determined adversely, would result in a Material Adverse Effect.
(dd) Absence of Accounting Issues.
A member of the Audit Committee has confirmed to the chief executive officer or chief financial officer of the Company that, except as
set forth in the Registration Statement, Pricing Disclosure Package and Prospectus, the Audit Committee is not reviewing or investigating,
and the Company’s independent auditors have not recommended that the Audit Committee review or investigate, (i) adding to, deleting,
changing the application of, or changing the Company’s disclosure with respect to, any of the Company’s material accounting
policies; (ii) any matter which could result in a restatement of the Company’s consolidated financial statements for any annual
or interim period during the current or prior three fiscal years or (iii) any Internal Control Event.
(ee) Accurate Disclosure; Exhibits.
The statements in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the headings “Material U.S.
Federal Income Tax Considerations to Non-U.S. Holders” and “Description of Capital Stock,” insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries, in all material respects,
of such legal matters, agreements, documents or proceedings and present the information required to be shown. There are no contracts or
documents which are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus pursuant
to Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K or incorporated by reference
therein which have not been so described, filed or incorporated as required, except for such exhibits as would not result in a Material
Adverse Effect.
(ff) eXtensible Business Reporting
Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(gg) Cybersecurity; Data Protection.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material
respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, free
and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries
have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal,
personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses,
and, to the Company’s knowledge, there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except
for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal
review or investigations relating to the same. To the Company’s knowledge, it and its subsidiaries are presently in material compliance
with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the
protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(hh) Insurance. The Company
and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts
as the Company believes are adequate for the conduct of their business. All such policies of insurance insuring the Company and its subsidiaries
are in full force and effect and neither the Company nor any of its subsidiaries has any reason to believe that any of them will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have a Material Adverse Effect on the Company.
(ii) No
Unlawful Payments. Neither the Company nor any of its subsidiaries, nor any director, officer or employee of the Company or any of
its subsidiaries nor, to the knowledge of the Company, any agent, affiliate 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 or taken an act in furtherance of an offer, promise or authorization of any direct or
indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or
controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the
foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the
United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in
furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback
or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce, and will continue
to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption
laws.
(jj) Compliance with Anti-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, including those of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “Anti-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 Anti-Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(kk) No Conflicts with Sanctions
Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees, nor, to the knowledge of the Company, any
agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject
or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets
Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation,
the designation as a “specially designated national” or “blocked person”), the United Nations Security Council
(“UNSC”), the European Union, His Majesty’s Treasury (“HMT”) or other relevant sanctions authority (collectively,
“Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that
is the subject or target of Sanctions, including, without limitation, the Crimea Region of Ukraine, the so-called Donetsk People’s
Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”).
For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings
or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with
any Sanctioned Country.
(ll) No Restrictions on Subsidiaries.
No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a
party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock
or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(mm) No Broker’s Fees. Except
as disclosed or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are
no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company
or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(nn) No Registration Rights.
Except as disclosed or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there
are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the Company under the Securities Act.
(oo) No
Stabilization. The Company has not either alone or with one or more other persons taken, directly or indirectly, any action that is
designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Shares. The Company acknowledges that the Underwriter may
engage in passive market making transactions in the Shares on the New York Stock Exchange (the “Exchange”) in accordance with
Regulation M.
(pp) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included
or incorporated by reference in any of the Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
(qq) Statistical and Market Data.
Any third-party statistical and market-related data included or incorporated by reference in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate.
(rr) Status under the Securities
Act. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that
the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act)
of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” and is a well-known seasoned
issuer, in each case as defined in Rule 405 under the Securities Act. The Company has paid the registration fee for this offering pursuant
to Rule 456(b)(1) under the Securities Act or will pay such fee within the time period required by such rule (without giving effect to
the proviso therein) and in any event prior to the Closing Date.
(ss) Ratings. No “nationally
recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, (i) has imposed
(or has informed the Company that it is intending to impose) any condition (financial or otherwise) on the Company’s retaining any
rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company in writing that it is considering
any of the actions described in Section 8(c) hereof.
(tt) Reserve Report Data. The
oil and gas reserve estimates of the Company contained or incorporated by reference into the Registration Statement, the Pricing Disclosure
Package and the Prospectus have been prepared by independent reserve engineers or by the Company in accordance with Commission guidelines
applied on a consistent basis throughout the periods involved, and the Company has no reason to believe that such estimates do not fairly
reflect the oil and gas reserves of the Company as of the dates indicated. Other than the production of the reserves in the ordinary course
of business and intervening product price fluctuations as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, the Company is not aware of any facts or circumstances that would cause a material adverse effect in the reserves or the
present value of future net cash flows therefrom as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(uu) Independent Reserve Engineers.
Netherland, Sewell and Associates, Inc., who have certified the reserve information of the Company and its consolidated subsidiaries,
are independent reserve engineers with respect to the Company in accordance with guidelines established by the Commission.
4. Representations
and Warranties of the Selling Stockholders. Each Selling Stockholder (and MacKay Shields LLC, as provided in Sections 4(a)(ii), 4(i)(ii)
and 4(k)(ii)) severally represents and warrants to the Underwriter and the Company that:
(a) Required
Consents; Authority. (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling
Stockholder of this Agreement, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been
obtained; and such Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer
and deliver the Shares to be sold by such Selling Stockholder hereunder; this Agreement has been duly authorized, executed and delivered
by such Selling Stockholder.
(ii) With
respect to MacKay Shields LLC and the MacKay Selling Stockholders, the Amended and Restated Management Agreement, dated May 1, 2015, between
MainStay VP Funds Trust and New York Life Investment Management LLC (as amended) and the Amended and Restated Subadvisory Agreement, dated
January 1, 2018, between New York Life Investment Management LLC and MacKay Shields LLC (as amended) provide MacKay Shields LLC the full
right, power and authority to enter into this Agreement on behalf of each MacKay Selling Stockholder, to determine the purchase price
to be paid by the Underwriter to the MacKay Selling Stockholders as provided herein, to authorize the delivery of the Shares to be sold
by the MacKay Selling Stockholders and otherwise act on behalf of such MacKay Selling Stockholders in connection with the transactions
contemplated by this Agreement, all without any further action by either MacKay Selling Stockholder.
(b) No
Conflicts. The execution, delivery and performance by such Selling Stockholder of this Agreement, the sale of the Shares to be sold
by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated herein or therein 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, result in the
termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property,
right or asset of such Selling Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property, right or asset
of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational
documents of such Selling Stockholder 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 agency, except, with respect to clauses (i) and (iii), conflicts, defaults, breaches
or violations that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Selling
Stockholder’s ability to perform its obligations under this Agreement.
(c) Title
to Shares. Such Selling Stockholder has good and valid title to the Shares to be sold at the Closing Date by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or adverse claims; such Selling Stockholder will have, immediately prior
to the Closing Date, good and valid title to the Shares to be sold at the Closing Date by such Selling Stockholder, free and clear of
all liens, encumbrances, equities or adverse claims; and such Selling Stockholder has a security entitlement (within the meaning of Section
8-102(a)(17) of the New York Uniform Commercial Code (“UCC”)) to the Shares free and clear of any action that may be asserted
based on an adverse claim with respect to such security entitlement, and assuming that the Underwriter acquires its interest in the Shares
it has purchased without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), upon the crediting of such Shares
to the securities account of the Underwriter maintained with DTC and payment therefor by the Underwriter, as provided herein, the Underwriter
will have acquired a security entitlement to such securities, and no action based on any adverse claim may be asserted against the Underwriter
with respect to such security entitlement.
(d) No
Stabilization. Such Selling Stockholder has not either alone or with one or more other persons taken, directly or indirectly, any
action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Shares. Such Selling Stockholder acknowledges that
the Underwriter may engage in passive market making transactions in the Shares on the Exchange in accordance with Regulation M.
(e) Pricing
Disclosure Package. The Pricing Disclosure Package, at the Applicable Time did not, and as of 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, however that such Selling Stockholder’s
representations and warranties under this Section 4(e) are limited solely to the information relating to such Selling Stockholder furnished
to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure Package and the Prospectus and any amendment
or supplement thereto, it being understood and agreed that the only such information furnished by such Selling Stockholder consists of
(i) the legal name of such Selling Stockholder, (ii) the number of shares of Common Stock and, if applicable, the number of shares of
Series A Preferred Stock of the Company, owned by such Selling Stockholder, prior to the completion of the offering contemplated hereby,
(iii) the information set forth in the applicable footnote relating to such Selling Stockholder under the beneficial ownership table and
(iv) the number of Shares to be offered by such Selling Stockholder, in each case as set forth in the section entitled “Selling
Stockholders” in the Pricing Disclosure Package and the Prospectus (collectively, the “Selling Stockholder Information”).
(f) Issuer
Free Writing Prospectus and Written Testing-the-Waters Communication. Other than the Registration Statement, the Preliminary Prospectus
and the Prospectus, such Selling Stockholder (including its agents and representatives, other than the Underwriter in its capacity as
such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to
any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication, 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
A hereto, each electronic road show and any other written communications approved in writing in advance by the Company and the Underwriter.
(g) Registration
Statement and Prospectus. As of the applicable effective date of the Registration Statement and any post-effective amendment thereto,
the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities
Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however that such Selling Stockholder’s representations and warranties under this Section 4(g) are limited
solely to such Selling Stockholder’s Selling Stockholder Information.
(h) Material
Information. As of the date hereof and as of the Closing Date, the sale of the Shares by such Selling Stockholder is not and will
not be prompted by any material information concerning the Company which is not set forth in the Registration Statement, the Pricing Disclosure
Package or the Prospectus.
(i) No
Unlawful Payments. (i) With respect to the Silver Point Selling Stockholders, neither such Silver Point Selling Stockholder nor any
of its subsidiaries (to the extent applicable), nor any director or officer of such Silver Point Selling Stockholder or any of its subsidiaries
nor, to the knowledge of such Silver Point Selling Stockholder, any agent, controlled affiliate or other person associated with or acting
on behalf of such Silver Point Selling Stockholder or any of its subsidiaries has (A) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (B) made or taken an act in furtherance of an offer, promise
or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including
of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for
or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (C) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing
the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under
the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (D) made, offered, agreed,
requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff,
influence payment, kickback or other unlawful or improper payment or benefit. Such Silver Point Selling Stockholder and its subsidiaries
have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure
compliance with all applicable anti-bribery and anti-corruption laws.
(ii) With
respect to the MacKay Selling Stockholders, neither such MacKay Selling Stockholder, nor MacKay Shields LLC nor, to the knowledge of MacKay
Shields LLC, any of such MacKay Selling Stockholder’s subsidiaries (to the extent applicable), any director or officer, any agent,
controlled affiliate or other person associated with or acting on behalf of such MacKay Selling Stockholder or any of its subsidiaries
has (A) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(B) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to
any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official
or candidate for political office; (C) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended,
or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or
anti-corruption law; or (D) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit,
including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. Such
Selling Stockholder and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and
procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(j) Compliance
with Anti-Money Laundering Laws. The operations of such Selling Stockholder and its subsidiaries (to the extent applicable) are and
have been conducted for the past five years in compliance with applicable financial recordkeeping and reporting requirements, including
those of the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving such Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the knowledge of such Selling Stockholder, threatened.
(k) No
Conflicts with Sanctions Laws. (i) With respect to the Silver Point Selling Stockholders, neither such Silver Point Selling Stockholder
nor any of its subsidiaries (to the extent applicable), directors or officers, nor, to the knowledge of such Silver Point Selling Stockholder,
any agent, controlled affiliate or other person associated with or acting on behalf of such Silver Point Selling Stockholder or any of
its subsidiaries is currently the subject or the target of any Sanctions, nor is such Silver Point Selling Stockholder, any of its subsidiaries
located, organized or resident in a Sanctioned Country; and such Silver Point Selling Stockholder 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 (A) to fund or facilitate any activities of or business with any person that, at the time
of such funding or facilitation, is the subject or target of Sanctions, (B) to fund or facilitate any activities of or business in any
Sanctioned Country or (C) in any other manner that will result in a violation by any person (including any person participating in the
transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, such Silver Point Selling
Stockholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any
person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ii) With
respect to the MacKay Selling Stockholders, neither such MacKay Selling Stockholder, nor MacKay Shields LLC, nor to the knowledge of MacKay
Shields LLC, any subsidiaries (to the extent applicable), directors or officers, agent, controlled affiliate or other person associated
with or acting on behalf of such MacKay Selling Stockholder or any of its subsidiaries is currently the subject or the target of any Sanctions,
nor is such MacKay Selling Stockholder, any of its subsidiaries located, organized or resident in a Sanctioned Country; and such MacKay
Selling Stockholder 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 (A) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (B) to fund or
facilitate any activities of or business in any Sanctioned Country or (C) in any other manner that will result in a violation by any person
(including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the
past five years, such MacKay Selling Stockholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in
any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions
or with any Sanctioned Country.
(l) Organization
and Good Standing. Such Selling Stockholder has been duly organized and is validly existing and in good standing under the laws of
its respective jurisdictions of organization.
(m) ERISA.
Such Selling Stockholder is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975
of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R.
2510.3-101, or otherwise.
5. Further
Agreements of the Company. The Company covenants and agrees with the Underwriter that:
(a) Required
Filings. The Company will file (i) 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, (ii) any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities
Act, and (iii) 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 Underwriter, on the business day next succeeding
the date of this Agreement in such quantities as the Underwriter may reasonably request. The Company will pay the registration fee for
this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein)
and in any event prior to the Closing Date.
(b) Delivery
of Copies. The Company will deliver, without charge, (i) to the Underwriter, one signed copy of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference
therein; and (ii) during the Prospectus Delivery Period (as defined below), 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 Underwriter 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 Underwriter 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
the Underwriter or any dealer.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. During the Prospectus Delivery Period, before making, preparing, using, authorizing,
approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration
Statement, the Pricing Disclosure Package or the Prospectus (excluding any amendment or supplement through incorporation by reference
of any report filed under the Exchange Act), whether before or after the time that the Registration Statement becomes effective, the Company
will furnish to the Underwriter and counsel for the Underwriter a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement
for review and will not make, 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 Underwriter reasonably objects in a timely manner.
(d) Notice
to the Underwriter. The Company will advise the Underwriter promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when
any supplement to the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters
Communication or any amendment to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating
to the Registration Statement or any other request by the Commission for any additional information including, but not limited to, any
request for information concerning any Testing-the-Waters Communication; (v) of the issuance by the Commission or any other governmental
or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus, any of the Pricing Disclosure Package, the Prospectus or any Written Testing-the-Waters Communication or the
initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of
any event or development within the Prospectus Delivery Period as a result of which the Prospectus, any of the Pricing Disclosure Package,
any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or supplemented would include 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
existing when the Prospectus, the Pricing Disclosure Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters
Communication is delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act;
and (viii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable
best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or any Written Testing-the-Waters Communication
or suspending any such qualification of the Shares and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include 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 existing when the Prospectus is delivered to
a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriter thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the
Underwriter and to such dealers as the Underwriter may designate such amendments or supplements to the Prospectus (or any document to
be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so
amended or supplemented (or any document to be filed with the Commission and incorporated by reference therein) will not, in the light
of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with
law and (2) if at any time prior to the Closing Date (i) any event or development shall occur or condition shall exist as a result of
which the Pricing Disclosure Package as then amended or supplemented would include 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 existing when the Pricing
Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure
Package to comply with law, the Company will immediately notify the Underwriter thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the Underwriter and to such dealers as the Underwriter may
designate, such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated
by reference therein) as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will
not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that
the Pricing Disclosure Package will comply with law.
(f) Blue
Sky Compliance. The Company will reasonably cooperate with the Underwriter to qualify the Shares for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Underwriter shall reasonably request and will continue such qualifications in effect so
long as required for distribution of the Shares; provided that the Company shall not be required to (i) qualify as a foreign corporation
or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if
it is not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its security holders and the Underwriter as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date”
(as defined in Rule 158) of the Registration Statement.
(h) Clear
Market. For a period of 30 days after the date of the Prospectus, the Company will not, without the prior written consent of the Underwriter,
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the
Commission a registration statement under the Securities Act relating to, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, or publicly disclose the intention to undertake any of the foregoing, or (ii) enter into
any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or
any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise, without the prior written consent of the Underwriter, other than the Shares to be sold
hereunder.
The restrictions described above do not
apply to (i) the issuance of shares of Common Stock or securities convertible into or exercisable for shares of Common Stock pursuant
to the conversion or exchange of convertible or exchangeable securities (including the Series A Preferred Stock) or the exercise of warrants
or options (including net exercise) or the settlement of RSUs (including net settlement), in each case outstanding on the date of this
Agreement and described in the Prospectus; (ii) grants of stock options, stock awards, restricted stock, RSUs, or other equity awards
and the issuance of shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock (whether
upon the exercise of stock options or otherwise) to the Company’s employees, officers, directors, advisors, or consultants pursuant
to the terms of an equity compensation plan in effect as of the Closing Date and described in the Prospectus, provided that such recipients
enter into a lock-up agreement with the Underwriter; (iii) the issuance of up to 5.0% of the outstanding shares of Common Stock, or securities
convertible into, exercisable for, or which are otherwise exchangeable for, Common Stock, immediately following the Closing Date, in acquisitions
or other similar strategic transactions, provided that such recipients enter into a lock-up agreement with the Underwriter; or (iv) the
filing of any registration statement on Form S-8 relating to securities granted or to be granted pursuant to any plan in effect on the
date of this Agreement and described in the Prospectus or any assumed benefit plan pursuant to an acquisition or similar strategic transaction.
(i) No
Stabilization. On the terms described in the Pricing Disclosure Package, neither the Company nor its subsidiaries or affiliates will
take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Common Stock.
(j) Exchange
Listing. The Company will use its reasonable best efforts to list, subject to notice of issuance, the Shares on the Exchange.
(k) Reports.
So long as the Shares are outstanding, the Company will furnish to the Underwriter, as soon as they are available, copies of all reports
or other communications (financial or other) furnished to holders of the Shares, and copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange or automatic quotation system; provided the Company will be
deemed to have furnished such reports and financial statements to the Underwriter to the extent they are filed on the Commission’s
Electronic Data Gathering, Analysis, and Retrieval system.
(l) Record
Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m) Shelf
Renewal. If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration
Statement, any of the Shares remain unsold by the Underwriter, the Company will, prior to the Renewal Deadline, file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Underwriter.
If the Company is not eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if
it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Underwriter,
and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline.
The Company will take all other action necessary or appropriate to permit the issuance and sale of the Shares to continue as contemplated
in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement, as the case may be.
6. Further
Agreements of the Selling Stockholders. Each of the Selling Stockholders severally covenants and agrees with the Underwriter that:
(a) No
Stabilization. Such Selling Stockholder will not take, directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the price of the Common Stock.
(b) Tax
Form. It will deliver to the Underwriter prior to or at the Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by the Treasury Department regulations in lieu thereof) in order
to facilitate the Underwriter’s documentation of its compliance with the reporting and withholding provisions of the Tax Equity
and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated.
(c) Use
of Proceeds. It 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 a subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject of target of Sanctions, (ii) to fund
or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by
any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
7. Certain
Agreements of the Underwriter. The Underwriter hereby represents and agrees that:
(a) It
has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”,
as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the
Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i)
a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that
was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing
Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above
(including any electronic road show), or (iii) any free writing prospectus prepared by the Underwriter and approved by the Company in
advance in writing.
(b) It
has not and will not, without the prior written consent of the Company, use any free writing prospectus that contains the final terms
of the Shares unless such terms have previously been included in a free writing prospectus filed with the Commission.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify
the Company and the Selling Stockholders if any such proceeding against it is initiated during the Prospectus Delivery Period).
8. Conditions
of Underwriter’s Obligations. The obligation of the Underwriter to purchase the Shares on the Closing Date as provided herein
is subject to the performance by the Company and each of the Selling Stockholders of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose , pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities
Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 5(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable
satisfaction of the Underwriter.
(b) Representations
and Warranties. The respective representations and warranties of the Company, the Selling Stockholders and MacKay Shields LLC, contained
herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers,
of each Selling Stockholder and its officers and of MacKay Shields LLC and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c) No
Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded any debt securities, convertible securities or preferred stock issued or guaranteed
by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is
defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock issued or
guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No
Material Adverse Change. No event or condition of a type described in Section 3(h) hereof shall have occurred or shall exist,
which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in the judgment of the Underwriter makes it impracticable or inadvisable
to proceed with the offering, sale or delivery of the Shares on the Closing Date, on the terms and in the manner contemplated by this
Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officer’s
Certificate. The Underwriter shall have received on and as of the Closing Date (x) a certificate of the chief financial officer or
chief accounting officer of the Company and one additional senior executive officer of the Company who is satisfactory to the Underwriter
(i) confirming that such officers have carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus
and, to the knowledge of such officers, the representations of the Company set forth in Section 3(b) hereof are true and correct,
(ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company
has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing
Date, and (iii) to the effect set forth in paragraphs (a), (c) and (d) above, (y) a certificate of each of the Selling Stockholders,
in form and substance reasonably satisfactory to the Underwriter, confirming that (A) the representations of such Selling Stockholder
set forth in Sections 4(e), 4(f) and 4(g) hereof are true and correct, (B) the other representations and warranties of such Selling Stockholder
in this agreement are true and correct and (C) such Selling Stockholder has complied with all agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to such Closing Date and (z) a certificate of MacKay Shields LLC, in
form and substance reasonably satisfactory to the Underwriter confirming that the representations and warranties of MacKay Shields LLC
provided in Sections 4(a)(ii), 4(i)(ii) and 4(k)(ii) are true and correct.
(f) Accountant’s
Comfort Letters. On the date of this Agreement and on the Closing Date, Grant Thornton LLP shall have furnished to the Underwriter,
at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained or
incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that
the letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to such Closing Date.
(g) Reserve
Engineers’ Comfort Letters. On the date of this Agreement and on the Closing Date, Netherland, Sewell & Associates,
Inc. shall have furnished to the Underwriter a letter, dated the respective dates of delivery thereof and addressed to the Underwriter,
stating the conclusions and findings of such firm with respect to certain of the oil and natural gas reserves of the Company, and certain
other related information contained in the Pricing Disclosure Package and the Prospectus, in form and substance reasonably satisfactory
to the Underwriter.
(h) Opinion
and 10b-5 Statement of Counsel for the Company. Kirkland & Ellis, LLP, counsel for the Company, shall have furnished to the Underwriter,
at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriter, in
form and substance reasonably satisfactory to the Underwriter.
(i) Opinion
of Counsel for the Delaware Selling Stockholders. Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for The MainStay VP High
Yield Corporate Bond Portfolio, Silver Point Capital Fund, L.P., Silver Point Distressed Opportunities Fund, L.P., Silver Point Distressed
Opportunity Institutional Partners, L.P. (collectively, the “Delaware Selling Stockholders”), shall have furnished to the
Underwriter, at the request of the Delaware Selling Stockholders, their written opinion, dated the Closing Date and addressed to the Underwriter,
in form and substance reasonably satisfactory to the Underwriter.
(j) Opinion
of Counsel for the Cayman Islands Selling Stockholder. Walkers, counsel for Silver Point Capital Offshore Master Fund, L.P. (the “Cayman Islands Selling Stockholder”), shall have furnished to the Underwriter, at the request of
the Cayman Islands Selling Stockholder, their written opinion, dated the Closing Date and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter.
(k) Opinion
of Counsel for the Massachusetts Selling Stockholder. Dechert LLP, counsel for The MainStay MacKay High Yield Corporate Bond Fund
(the “Massachusetts Selling Stockholder”), shall have furnished to the Underwriter, at the request of the Massachusetts Selling
Stockholder, their written opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory
to the Underwriter.
(l) Opinion
and 10b-5 Statement of Counsel for the Underwriter. The Underwriter shall have received on and as of the Closing Date, an opinion
and 10b-5 statement, addressed to the Underwriter, of Cravath, Swaine & Moore LLP, counsel for the Underwriter, with respect to such
matters as the Underwriter may reasonably request, and such counsel shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(m) No
Legal Impediment to Sale. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the sale of
the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date,
prevent the sale of the Shares.
(n) Good
Standing. The Underwriter shall have received on and as of the Closing Date, satisfactory evidence of the good standing of the Company
and its subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Underwriter
may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities
of such jurisdictions.
(o) Exchange
Listing. The Shares to be delivered on the Closing Date shall have been approved for listing on the Exchange, subject to official
notice of issuance.
(p) Lock-up
Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders,
officers and directors of the Company, listed on Schedule 3 hereto, relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date.
(q) Additional
Documents. On or prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Underwriter such
further certificates and documents as the Underwriter may reasonably request.
All opinions, letters, certificates and evidence
mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriter.
9. Indemnification
and Contribution.
(a) Indemnification
of the Underwriter by the Company. The Company agrees to indemnify and hold harmless the Underwriter, its affiliates, directors and
officers and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus,
any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any Written Testing-the-Waters
Communication, any road show as defined in Rule 433(h) under the Securities Act (a “road show”) or any Pricing Disclosure
Package (including any Pricing Disclosure Package that has subsequently been amended), or caused by any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to
the Underwriter furnished to the Company in writing by the Underwriter through the Underwriter expressly for use therein, it being understood
and agreed that the only such information furnished by the Underwriter consists of the information described as such in paragraph (c)
below.
(b) Indemnification
of the Underwriter by the Selling Stockholders. Each of the Selling Stockholders severally in proportion to the number of Shares to
be sold by such Selling Stockholder hereunder agrees to indemnify and hold harmless the Underwriter, its affiliates, directors and officers
and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any such losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission to state a
material fact made in reliance upon and in conformity with any information furnished by such Selling Stockholder in writing to the Company
relating to such Selling Stockholder expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto),
any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, any road show or any Pricing
Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended), it being understood and agreed that
for purposes of this Agreement, the only such information so furnished by such Selling Stockholder consists of such Selling Stockholder’s
Selling Stockholder Information. The aggregate amount of each Selling Stockholder’s liability pursuant to this Section 9(b) and
Section 9(e) shall not exceed the aggregate amount of proceeds received after underwriting commissions and discounts but before expenses
by such Selling Stockholder from the sale of its Shares hereunder.
(c) Indemnification
of the Company and the Selling Stockholders. The Underwriter agrees to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of the Selling Stockholders to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without limitation, legal fees and
other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to the Underwriter furnished to the Company in writing by the Underwriter through
the Underwriter expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, any road show or any Pricing Disclosure
Package (including any Pricing Disclosure Package that has subsequently been amended), it being understood and agreed upon that the only
such information furnished by the Underwriter consists of the following information in the Prospectus furnished on behalf of the Underwriter:
the information contained in the eighth and eleventh paragraphs under the caption “Underwriting”.
(d) Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding paragraphs of this
Section 9, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have under the preceding paragraphs of this Section 9 except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further,
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under the preceding paragraphs of this Section 9. If any such proceeding shall be brought or asserted against an Indemnified
Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent
the Indemnified Person and any others entitled to indemnification pursuant to this Section that the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses in such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding, as incurred.
In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified
Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them.
It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to one local counsel in each jurisdiction) for all Indemnified Persons, and that all such
fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for the Underwriter, its affiliates, directors
and officers and any control persons of the Underwriter shall be designated in writing by the Underwriter and any such separate firm for
the Company, its directors, its officers who signed the Registration Statement and any control persons of the Company (other than the
Silver Point Selling Stockholder) shall be designated in writing by the Company and any such separate firm for a Selling Stockholder shall
be designated in writing by such Selling Stockholder. The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, the Indemnifying Person agrees to indemnify each Indemnified Person
from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated
by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying
Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory
to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement
as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(e) Contribution.
If the indemnification provided for in paragraphs (a), (b) or (c) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu
of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders, on the one hand, and the Underwriter on the other, from the offering of the Shares or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriter
on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders, on the one hand,
and the Underwriter on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses)
received by the Selling Stockholders from the sale of the Shares and the total underwriting discounts and commissions received by the
Underwriter. The relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriter on the other, shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company and the Selling Stockholders or by the Underwriter
and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Limitation
on Liability. The Company, the Selling Stockholders and the Underwriter agree that it would not be just and equitable if contribution
pursuant to paragraph (e) above were determined by pro rata allocation (even if the Selling Stockholders were treated as one entity
for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph
(e) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to
in paragraph (e) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by
such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs (e) and (f), in no event
shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions
received by the Underwriter with respect to the offering of the Shares exceeds the amount of any damages that the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. In no event shall the aggregate
liability of any Selling Stockholder under Section 9(b) and Section 9(e) exceed the limit set forth in Section 9(b). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(g) Non-Exclusive
Remedies. The remedies provided for in this Section 9 paragraphs (a) through (f) are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any Indemnified Person at law or in equity.
10. Effectiveness
of Agreement. This Agreement shall become effective as of the date first written above.
11. Termination.
This Agreement may be terminated in the absolute discretion of the Underwriter, by notice to the Company and the Selling Stockholders,
if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by the Exchange; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended
on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared
by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Underwriter, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing
Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
12. [Reserved].
13. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause
to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments
and supplements thereto) and the distribution thereof; (iii) the fees and expenses of the Company’s counsel, the
Selling Stockholders’ counsel, and independent accountants; (iv) the fees and expenses incurred in connection with the registration
or qualification and determination of eligibility for investment of the Shares under the laws of such jurisdictions as the Underwriter
may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel
for the Underwriter); (v) the cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and any
registrar; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA;
(viii) all expenses incurred by the Company in connection with any “road show” presentation to potential investors ; and (x)
all expenses and application fees related to the listing of the Shares on the Exchange.
(b) If
(i) this Agreement is terminated pursuant to Section 11, (ii) any Selling Stockholders for any reason fail to tender the Shares for
delivery to the Underwriter on the Closing Date, or (iii) the Underwriter declines to purchase the Shares for any reason permitted under
this Agreement, the Company and the Selling Stockholders agree to reimburse the Underwriter for all out-of-pocket costs and expenses (including
the fees and expenses of their counsel) reasonably incurred by the Underwriter in connection with this Agreement and the offering contemplated
hereby; provided that any reimbursement as a result of a failure as described in clause (ii) above shall be paid solely by the
Selling Stockholders. Otherwise, the Underwriter shall pay its own expenses, including the fees and expenses of its counsel.
14. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred to herein and the affiliates of the Underwriter referred
to in Section 9 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Shares from the Underwriter
shall be deemed to be a successor merely by reason of such purchase.
15. Survival.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Selling Stockholders
and the Underwriter contained in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the Underwriter pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholders or the Underwriter or the directors, officers, controlling persons or affiliates referred to in Section 9 hereof.
16. Certain
Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has
the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on
which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth
in Rule 405 under the Securities Act.
17. Compliance
with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), the Underwriter is required to obtain, verify and record information that identifies its clients, including the Company and
the Selling Stockholders, which information may include the name and address of its clients, as well as other information that will allow
the Underwriter to properly identify its clients.
18. Miscellaneous.
(a) Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to any MacKay Selling Stockholder shall be deemed to have been duly given
if provided to MacKay Shields LLC in accordance with this Section 18(a). Notices to any Silver Point Selling Stockholder shall be deemed
to have been duly given if given to Silver Point Capital Fund, L.P. in accordance with this Section 18(a). Notices to the Underwriter
shall be given to it at J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179; Fax: (212) 622-8358; Attention: Equity
Syndicate Desk. Notices to the Company shall be given to it at 713 Market Drive, Oklahoma City, Oklahoma 73314; Email: pcraine@gulfportenergy.com;
Attention: Patrick Craine. Notices to the MacKay Selling Stockholders shall be given to MacKay Shields LLC at 1345 Avenue of the Americas,
New York, NY 10105; Email: Young.Lee@mackayshields.com; Attention: Young Lee; with a copy to Paul, Weiss, Rifkind, Wharton & Garrison
LLP, 1285 Avenue of the Americas, New York, NY 10019-6064; Fax: (212) 492-0258 and (212) 492-0445; Email: arosenberg@paulweiss.com and
ckaoutzanis@paulweiss.com; Attention: Andrew N. Rosenberg, Esq. and Christodoulos Kaoutzanis, Esq. Notices to the Silver Point Selling
Stockholders shall be given to Silver Point Capital, L.P. at Two Greenwich Plaza, Suite 1, Greenwich, CT 06830; Email: jkasmarcik@silverpointcapital.com
and rpim@silverpointcapital.com; Attention: James Kasmarcik and Robert Pim; with a copy to Paul, Weiss, Rifkind, Wharton & Garrison
LLP, 1285 Avenue of the Americas, New York, NY 10019-6064; Fax: (212) 492-0258 and (212) 492-0445; Email: arosenberg@paulweiss.com and
ckaoutzanis@paulweiss.com; Attention: Andrew N. Rosenberg, Esq. and Christodoulos Kaoutzanis, Esq.
(b) Governing
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(c) Submission
to Jurisdiction. Each of the Company and each Selling Stockholder hereby submits to the exclusive jurisdiction of the U.S. federal
and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. Each of the Company and each Selling Stockholder waives any objection which it
may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each of the Company and each Selling Stockholder
agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company
and each Selling Stockholder, as applicable, and may be enforced in any court to the jurisdiction of which Company and each Selling Stockholder,
as applicable, is subject by a suit upon such judgment.
(d) Waiver
of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating
to this Agreement.
(e) Recognition
of the U.S. Special Resolution Regimes.
(i) In
the event that the Underwriter is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from the Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(ii) In
the event that the Underwriter is a Covered Entity or a BHC Act Affiliate of the Underwriter becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Underwriter are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
As used in this Section 18(e):
“BHC Act Affiliate” has the meaning assigned to
the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of
(i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform
and Consumer Protection Act and the regulations promulgated thereunder.
(f) Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute one and the same instrument. This Agreement may be delivered
via electronic mail (including PDF) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic
Signature and Records Act or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
(g) Amendments
or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the parties hereto.
(h) Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding,
please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very truly yours, |
|
|
|
GULFPORT ENERGY CORPORATION |
|
|
|
By: |
/s/
Patrick K. Craine |
|
Name: |
Patrick K. Craine |
|
Title: |
Chief Legal and Administrative Officer and Corporate Secretary |
[Signature Page to Underwriting Agreement]
|
MACKAY SHIELDS LLC |
|
|
|
By: |
/s/ Young Lee |
|
|
Name: |
Young Lee |
|
|
Title: |
Senior Managing Director |
|
|
|
THE MAINSTAY MACKAY HIGH YIELD CORPORATE BOND FUND |
|
|
|
By: |
MacKay Shields LLC, its subadvisor |
|
|
|
By: |
/s/ Young Lee |
|
|
Name: |
Young Lee |
|
|
Title: |
Senior Managing Director |
|
|
|
THE MAINSTAY VP HIGH YIELD CORPORATE BOND PORTFOLIO |
|
|
|
By: |
MacKay Shields LLC, its subadvisor |
|
|
|
By: |
/s/ Young Lee |
|
|
Name: |
Young Lee |
|
|
Title: |
Senior Managing Director |
[Signature Page to Underwriting Agreement]
|
SILVER POINT CAPITAL FUND, L.P. |
|
|
|
By: Silver Point Capital General Partner, LLC, its general partner |
|
|
|
By: |
/s/ Stacey Hatch |
|
|
Name: |
Stacey Hatch |
|
|
Title: |
Authorized Signatory |
|
|
|
SILVER POINT CAPITAL OFFSHORE MASTER FUND, L.P. by SPCP OFFSHORE IV, INC., as its designated affiliate |
|
|
|
By: Silver Point Capital Offshore General Partner, LLC, its general partner |
|
|
|
By: |
/s/ Stacey Hatch |
|
|
Name: |
Stacey Hatch |
|
|
Title: |
Authorized Signatory |
|
|
|
SILVER POINT DISTRESSED OPPORTUNITIES FUND, L.P. |
|
|
|
By: Silver Point Distressed Opportunities Onshore General Partner, LLC, its general partner |
|
|
|
By: |
/s/ Stacey Hatch |
|
|
Name: |
Stacey Hatch |
|
|
Title: |
Authorized Signatory |
|
|
|
SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS, L.P. |
|
|
|
By: Silver Point Distressed Opportunities Onshore General Partner, LLC, its general partner |
|
|
|
By: |
/s/ Stacey Hatch |
|
|
Name: |
Stacey Hatch |
|
|
Title: |
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: As of the date first written above
J.P. MORGAN SECURITIES LLC, |
|
|
|
|
|
|
|
by |
/s/ Lucy Brash |
|
|
Name: |
Lucy Brash |
|
|
Title: |
Executive Director |
|
[Signature Page to Underwriting Agreement]
Schedule 1
[Reserved.]
Schedule 2
Selling Stockholder |
|
Number of Shares: |
The MainStay MacKay High Yield Corporate Bond Fund |
|
82,279 |
The MainStay VP High Yield Corporate Bond Portfolio |
|
21,185 |
Silver Point Capital Fund, L.P. |
|
97,758 |
Silver Point Capital Offshore Master Fund, L.P. |
|
267,281 |
Silver Point Distressed Opportunities Fund, L.P. |
|
65,018 |
Silver Point Distressed Opportunity Institutional Partners, L.P. |
|
119,943 |
Schedule 3
Lock-Up Parties
Company Directors and Officers
Selling Stockholders
| 1. | The MainStay MacKay High Yield Corporate Bond Fund |
| 2. | The MainStay VP High Yield Corporate Bond Portfolio |
| 3. | Silver Point Capital Fund, L.P. |
| 4. | Silver Point Capital Offshore Master Fund, L.P. |
| 5. | Silver Point Distressed Opportunities Fund, L.P. |
| 6. | Silver Point Distressed Opportunity Institutional Partners, L.P. |
Other Stockholders
| 1. | Silver Point Distressed Opportunities Offshore Master Fund, L.P. |
| 2. | Silver Point Distressed Opportunity Institutional Partners Master Fund (Offshore), L.P. |
Annex A
a. Pricing Disclosure Package
Press release issued by the Company on December
11, 2023 relating to the announcement of the commencement of the offering contemplated by this Agreement.
b. Pricing Information
Provided Orally by Underwriter
Price per Share: Variable
Number of Shares: 653,464
Exhibit A
FORM OF LOCK-UP AGREEMENT
_____________, 20__
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Re: Gulfport
Energy Corporation — Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as the Underwriter,
propose to enter into an underwriting agreement (the “Underwriting Agreement”) with Issuer, a Delaware corporation (the “Company”)
and the Selling Stockholders listed on Schedule 2 to the Underwriting Agreement, providing for the public offering (the “Public Offering”)
by you, of common stock, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of your agreement to purchase
and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged,
the undersigned hereby agrees that, without your prior written consent, the undersigned will not, and will not cause any direct or indirect
affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the
close of business 30 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”) (such
period, the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities
convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities
which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange
Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the “Lock-Up
Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the
economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for, or exercise any right with respect to, the
registration of any Lock-Up Securities, provided that the undersigned can make such demand for, or exercise any right with respect to,
the registration of any Lock-Up Securities so long the actions described in clause (1) are not taken during the Restricted Period and
no filing is made with the Commission with respect to sale or the registration of such Lock-Up Securities during the Restricted Period,
or (4) publicly disclose the intention to do any of the foregoing other than as may be required by Section 13 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) as a result of the consummation of the transactions contemplated by the Underwriting
Agreement. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other
transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call
option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed
or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned
or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities,
whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities,
in cash or otherwise.
Notwithstanding the foregoing, the undersigned
may:
(a) transfer
the undersigned’s Lock-Up Securities:
(i) as
a bona fide gift or gifts, or for bona fide estate planning purposes,
(ii) by
will or intestacy,
(iii) to
any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a
trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement,
“immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not
more remote than first cousin),
(iv) to
a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the
legal and beneficial owner of all of the outstanding equity securities or similar interests,
(v) to
a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above,
(vi) if
the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation,
partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under
the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing
or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where
the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership),
or (B) as part of a distribution to members or shareholders of the undersigned,
(vii) by
operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement,
(viii) to
the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee,
(ix) as
part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public
Offering,
(x) to
the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase
shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment
of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units,
options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be
subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights
are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan,
each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or
(xi) pursuant
to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board and made to
all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof,
“Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction),
in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after
such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company
(or the surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar transaction
is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided
that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer
shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Underwriter
a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a) (i), (ii),
(iii), (iv), (v), (vi), (ix) and (x), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee)
under the Exchange Act, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case
of any transfer or distribution pursuant to clause (a)(vii) and (viii) it shall be a condition to such transfer that no public filing,
report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report
or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution
shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto
the nature and conditions of such transfer;
(b) exercise
outstanding options, settle restricted stock units or other equity awards or exercise warrants pursuant to plans described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; provided that any Lock-Up Securities received upon such exercise, vesting
or settlement shall be subject to the terms of this Letter Agreement;
(c) convert
outstanding preferred stock, warrants to acquire preferred stock or convertible securities into shares of Common Stock or warrants to
acquire shares of Common Stock; provided that any such shares of Common Stock or warrants received upon such conversion shall be subject
to the terms of this Letter Agreement;
(d) establish
trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Lock-Up Securities; provided that (1)
such plans do not provide for the transfer of Lock-Up Securities during the Restricted Period and (2) no filing by any party under the
Exchange Act or other public announcement shall be required or made voluntarily in connection with such trading plan; and
(e) sell
the Securities to be sold by the undersigned pursuant to the terms of the Underwriting Agreement.
In furtherance of the foregoing, the Company, and
any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants
that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the
undersigned.
The undersigned acknowledges
and agrees that the Underwriter has not provided any recommendation or investment advice nor has the Underwriter solicited any action
from the undersigned with respect to the Public Offering of the Securities and the undersigned has consulted their own legal, accounting,
financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although
the Underwriter may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with
the Public Offering, the Underwriter is not making a recommendation to you to participate in the Public Offering, enter into this Letter
Agreement, or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures is intended to
suggest that the Underwriter is making such a recommendation.
The undersigned understands that, if the Underwriting
Agreement does not become effective by December 25, 2023, or if the Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, the undersigned
shall be released from all obligations under this Letter Agreement. The undersigned understands that the Underwriter is entering into
the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy
or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
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Very truly yours, |
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[NAME OF SELLING STOCKHOLDER/OTHER STOCKHOLDER/COMPANY OFFICER/COMPANY DIRECTOR] |
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