24,000,000 Shares Aurora Oil & Gas Corporation Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
24,000,000 Shares
Aurora Oil & Gas Corporation
Common Stock
[ __], 2006
XXXXXXX XXXX & COMPANY L.L.C.
KeyBanc Capital Markets
a Division of McDonald Investments, inc.
Xxxxxx Xxxxxx & Company, Inc.
As Representatives of the several Underwriters
c/o JOHNSON RICE & COMPANY L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
KeyBanc Capital Markets
a Division of McDonald Investments, inc.
Xxxxxx Xxxxxx & Company, Inc.
As Representatives of the several Underwriters
c/o JOHNSON RICE & COMPANY L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form SB-2 (File No. 333-137176), and amendments thereto,
and related preliminary prospectuses to be used in connection with the public offering and sale of
the Offered Shares. Such registration statement, as amended, including the prospectus, financial
statements, exhibits and schedules thereto, in the form in which it was declared effective by the
Commission under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), including all documents incorporated or deemed to
be incorporated by reference therein and any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430A under the Securities Act or the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange
Act”), is called the “Registration Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of filing of the Rule 462(b) Registration
Statement the term
“Registration Statement” shall include the Rule 462(b) Registration Statement. The
prospectus, in the form first used by the Underwriters to confirm sales of the Offered Shares or in
the form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act, is called the “Prospectus.” Any preliminary
prospectus included in the Registration Statement or filed with the Commission pursuant to Rule 424
under the Securities Act is called a “preliminary prospectus.” As used herein, “free writing
prospectus” has the meaning set forth in Rule 405 under the Securities Act, and “Time of Sale
Prospectus” means any preliminary prospectus. As used herein, the terms “Registration Statement,”
“preliminary prospectus” and Prospectus shall include the documents, if any, incorporated by
reference therein pursuant to Rule 411 under the Securities Act, which were filed under the
Exchange Act on or before the effective date of the Registration Statement or the date of any
preliminary prospectus or the Prospectus, as the case may be, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document
under the Exchange Act after the effective date of the Registration Statement or the date of any
preliminary prospectus or the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed. All references in this Agreement to (i) the
Registration Statement, 462(b) Registration Statement, a preliminary prospectus, or the Prospectus,
or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”)
and (ii) the Prospectus shall be deemed to include the “electronic Prospectus” provided for use in
connection with the offering of the Offered Shares as contemplated by Section 3(A)(m) of this
Agreement. All references in this Agreement to financial statements and schedules and other
information which are “contained,” “included” or “stated” in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus pursuant to Rule 411 under the
Securities Act, which were filed under the Exchange Act on or before the effective date of the
Registration Statement or the date of any preliminary prospectus or the Prospectus, as the case may
be.
The Company and the Selling Stockholder, severally and not jointly, hereby confirm their
respective agreements with the Underwriters as follows:
A. Representations and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter and the Selling
Stockholder as follows:
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Each preliminary prospectus and the Prospectus when filed complied in all material respects
with the Securities Act and, if filed by electronic transmission pursuant to XXXXX (except as may
be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of the Offered Shares.
Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto, at the time it became effective complied and, as amended or supplemented, if
applicable, will, as of the date of such amendment or supplement, as applicable, comply in all
material respects with the Securities Act and did not and, as amended or supplemented, if
applicable, will not, as of the date of such amendment or supplement, as applicable, contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Time of Sale Prospectus does not,
and at the time of each sale of the Shares in connection with the offering and at the First Closing
Date (as defined in Section 2), the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, 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. The Prospectus, as of its date, did not and, as amended or
supplemented, if applicable, will not, as of the date of such amendment or supplement, as
applicable, 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. The representations and warranties set forth in the three
immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the
Prospectus or Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by the Representatives expressly for use therein, it being understood and agreed that the
only such information furnished by the Representatives to the Company consists of the information
described in Section 9(c) below. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration Statement which have not
been described or filed as required.
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first refusal or similar rights to subscribe for or
purchase securities of the Company. The description of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted thereunder, as described
in the Registration Statement or in the Time of Sale Prospectus accurately and fairly present in
all material respects the information required to be shown with respect to such plans,
arrangements, options and rights. Except as described in the Prospectus, the Company has not
offered, sold or issued any Shares during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under or Regulations D or S of, the
Securities Act, that would be integrated under the Securities Act with the Offered Shares.
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which it may be bound, or to
which any of the property or assets of the Company or any of its Subsidiaries is subject
(collectively, “Agreements and Instruments”) except, in the case of clause (ii), for any defaults
which, singularly or in the aggregate, would not result in a Material Adverse Change; and the
execution, delivery and performance of this Agreement, the consummation of the transactions
contemplated by this Agreement and in the Time of Sale Prospectus including the issuance and sale
of the Offered Shares and the use of the proceeds from the sale of the Offered Shares as described
therein, and the compliance by the Company with its obligations under this Agreement do not and
will not, whether with or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the properties or assets of
the Company or any of its Subsidiaries pursuant to the Agreements and Instruments except for such
conflicts, breaches, defaults, liens, charges or encumbrances which, singularly or in the
aggregate, would not result in a Material Adverse Change, nor will such action result in any
violation of the provisions of the charter or by-laws or operating agreement or similar
organizational document of the Company or any of its Subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any
of their respective assets, properties or operations. As used herein, a “Repayment Event” means
any event or condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any of its
Subsidiaries.
(q) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration
Statement or the Prospectus pursuant to Form SB-2 or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of Regulation S-B or incorporated by reference therein which have
not been so described, filed or incorporated as required.
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copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to carry on the business now operated by it,
except where the failure to own or possess, or have the ability to acquire on reasonable terms such
Intellectual Property would not, singularly or in the aggregate, cause a Material Adverse Change;
and the expected expiration of any rights in any such Intellectual Property would not result in a
Material Adverse Change. Neither the Company nor any of its Subsidiaries has received any notice
or is otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Company or its
Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Change. None of the technology employed by the Company or any of its
Subsidiaries has been obtained or is being used by the Company or any of its Subsidiaries in
violation of any contractual obligation binding on the Company or any of its Subsidiaries, or, to
the Company’s knowledge, any of the officers, directors or employees of the Company or any of its
Subsidiaries or otherwise in violation of any rights of any persons.
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Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission promulgated thereunder.
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its most recent annual or quarterly report
with the Commission and the date of the Time of Sale Prospectus; and (iii) are effective in all
material respects to perform the functions for which they were established. Based on the most
recent evaluation of its disclosure controls and procedures, (i) the Company is not
aware of material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information, (ii) the Company’s audit committee of the
Company’s board of directors and the Company’s independent registered public accounting firm have
been made aware of any significant deficiencies in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the registrant’s ability to
record, process, summarize and report financial information and (iii) the Company is not aware of
any fraud, whether or not material, that involves management or other employees who have a
significant role in the Company’s internal control over financial reporting. The Company is not
aware of any change in its internal control over financial reporting that has occurred during its
most recent fiscal quarter that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
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Any certificate signed by any officer of the Company that is delivered to the Representatives
or to counsel for the Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company to each Underwriter and its counsel as to the matters covered thereby.
B. Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents, warrants and covenants to each Underwriter as follows:
(a) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of the
Selling Stockholder and is a valid and binding agreement of the Selling Stockholder,
enforceable in accordance with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors generally or by general equitable principles.
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(e) No Registration, Pre-emptive, Co-Sale or Other Similar Rights. The Selling Stockholder (i) does not have any registration or other similar rights to have
any equity or debt securities registered for sale by the Company under the Registration Statement
or included in the offering contemplated by this Agreement, except to the extent exercised and so
included or hereby waived, (ii) does not have any preemptive right, co-sale right or right of first
refusal or other similar right to purchase any of the Offered Shares that are to be sold by the
Company, except for such rights as the Selling Stockholder has waived prior to the date hereof and
as have been described in the Registration Statement and Time of Sale Prospectus, and (iii) does
not own any warrants, options or similar rights to acquire, and does not have any right or
arrangement to acquire, any capital stock, right, warrants, options or other
securities from the Company, other than those described in the Registration Statement and the
Time of Sale Prospectus.
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otherwise, and has taken no action which would directly or indirectly violate any
provision of Regulation M.
The Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to
be delivered pursuant to Section 6 hereof, counsel to the Selling Stockholder and counsel to the
Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
(a) The Firm Shares. Upon the terms herein set forth, (i) the Company agrees to issue and sell to the several
Underwriters an aggregate of [___] Firm Shares and (ii) the Selling Stockholder agrees to sell to
the several Underwriters an aggregate of [___] Firm Shares. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to the conditions herein
set forth, the Underwriters agree, severally and not jointly, to purchase from the Company and the
Selling Stockholder the respective number of Firm Shares set forth opposite their names on
Schedule A. The purchase price per Firm Share to be paid by the several Underwriters to
the Company and the Selling Stockholder shall be $[___] per share.
(b) The First Closing Date. Delivery of certificates for the Firm Shares to be purchased by the Underwriters and
payment therefor shall be made at the offices of Xxxxxx & Xxxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx (or such other place as may be agreed to by the Company, the Selling
Stockholder and the Representatives) at 9:00 a.m. Dallas time, on ___, 2006 [Fourth Business
Day After Signing], or such other time and date not later than 1:30 p.m. New York time, on ___
___, 2006 as the Representative shall designate by notice to the Company (the time and date of such
closing are called the “First Closing Date”). The Company and the Selling Stockholder hereby
acknowledge that circumstances under which the Representative may provide notice to postpone the
First Closing Date as originally scheduled include, but are in no way limited to, any determination
by the Company, the Selling Stockholder or the Representative to recirculate to the public copies
of an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section
11.
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be exercised at any time and from time to time
in whole or in part upon notice by the Representatives to the Company, which notice may be given at
any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the
aggregate number of Optional Shares as to which the Underwriters are exercising the option, (ii)
the names and denominations in which the certificates for the Optional Shares are to be registered
and (iii) the time, date and place at which such certificates will be delivered (which time and
date may be simultaneous with, but not earlier than, the First Closing Date; and in such case the
term “First Closing Date” shall refer to the time and date of delivery of certificates for the Firm
Shares and such Optional Shares). Such time and date of delivery, if subsequent to the First
Closing Date, is called an “Option Closing Date” and shall be determined by the Representatives and
shall not be earlier than two nor later than five full business days after delivery of such notice
of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Optional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine) that bears
the same proportion to the total number of Optional Shares to be purchased as the number of Firm
Shares set forth on Schedule A opposite the name of such Underwriter bears to the total
number of Firm Shares. The Representatives may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to the Company.
It is understood that the Representatives have been authorized, for their own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Optional Shares the Underwriters have agreed to
purchase. JRCO, individually and not as the Representative of the Underwriters, may (but shall not
be obligated to) make payment for any Offered Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representatives by the First Closing Date or the applicable
Option Closing Date, as the case may be, for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any of its obligations under this Agreement.
The Selling Stockholder hereby agrees that it will pay all stock transfer taxes, stamp duties
and other similar taxes, if any, payable upon the sale or delivery of the Secondary Shares to be
sold by the Selling Stockholder to the several Underwriters, or otherwise in connection with the
performance of the Selling Stockholder’s obligations hereunder.
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to the Representatives for the accounts of the
several Underwriters, certificates for the Optional Shares the Underwriters have agreed to purchase
at the First Closing Date or the applicable Option Closing Date, as the case may be, against the
irrevocable release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Offered Shares shall be in definitive form and
registered in such names and denominations as the Representatives shall have requested at least two
full business days prior to the First Closing Date (or the applicable Option Closing Date, as the
case may be) and shall be made available for inspection on the business day preceding the
First Closing Date (or the applicable Option Closing Date, as the case may be) at a location
in Dallas, Texas as the Representative may designate. Time shall be of the essence, and delivery
at the time and place specified in this Agreement is a further condition to the obligations of the
Underwriters.
A. Covenants of the Company. The Company further covenants and agrees with each Underwriter as follows:
(a) Delivery of Registration Statement, Time of Sale Prospectus and Prospectus. Upon request, the Company shall furnish to you, without charge, signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and to furnish to you in
New York City or, at your request, in New Orleans, Louisiana, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of this Agreement and during the
period mentioned in Section 3(A)(d) or 3(A)(f) below, as many copies of the Time of Sale
Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request.
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supplements to the Time of Sale Prospectus so that the statements in the
Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances
when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as
amended or supplemented, will no longer conflict with the Registration Statement, or so that the
Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
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Company
shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
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option to sell, pledge, transfer or
establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange
Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration
statement under the Securities Act in respect of, any Shares, options or warrants to acquire Shares
or securities exchangeable or exercisable for or convertible into Shares (other than as
contemplated by this Agreement with respect to the Offered Shares); provided, however, that (1) the
Company may issue Shares or options to purchase its Shares, or Shares upon exercise of options,
pursuant to any stock option, stock bonus or other stock plan or arrangement described in the
Prospectus or any amendment to or replacement of such plan, (2) the Company may file one or more
registration statements on Form S-8 or amendments thereto relating to the issuance of Shares or the
issuance and exercise of options to purchase Shares granted under the employee benefit plans of the
Company existing on the date of the Prospectus or any amendment to or replacement of such plan and
(3) the Company may issue shares upon the exercise of warrants outstanding on the date hereof.
Notwithstanding the foregoing, if (i) during the last 17 days of the Lock-up Period, the Company
issues an earnings release, or a news or other event relating to the Company occurs that, in the
good faith judgment of the Representatives, is material to the Company, or (ii) prior to the
expiration of the Lock-up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-up Period, then in each case the
Lock-up Period will be extended until the expiration of the 18-day period beginning on the date of
the issuance of the earnings release or the occurrence of the material news or material event, as
applicable.
B. Covenants of the Selling Stockholder. The Selling Stockholder further covenants and agrees with each Underwriter:
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sentence shall not apply to (1) the Secondary Shares to be sold
hereunder, (2) a transfer by the Selling Stockholder to an affiliate, provided that such affiliate
agrees in writing to be bound for the Lock-Up Period, or (3) a pledge of Shares (other than the
Secondary Shares) in connection with a bona fide margin account or other loan or financing
arrangement secured by such Shares. Notwithstanding the foregoing, if (i) during the last 17 days
of the Lock-up Period, the Company issues an earnings release or material news or a material event
relating to the Company occurs or (ii) prior to the expiration of the Lock-up Period, the Company
announces that it will release earnings results during the 16-day period beginning on the last day
of the Lock-up Period, then in each case the Lock-up Period will be extended until the expiration
of the 18-day period beginning on the date of the issuance of the earnings release or the
occurrence of the material news or material event, as applicable.
C. JRCO, on behalf of the several Underwriters, may, in its sole discretion, waive in writing
the performance by the Company or the Selling Stockholder of any one or more of the foregoing
covenants or extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the
performance of its obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance and delivery of the
Offered Shares (including all printing and engraving costs), (ii) all fees and expenses of the
registrar and transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp
taxes in connection with the issuance and sale of the Offered Shares to the Underwriters, (iv) all
fees and expenses of the Company’s counsel, independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), the Time of Sale Prospectus, the
Prospectus and each preliminary prospectus, and all amendments and supplements thereto, and this
Agreement, (vi) all filing fees and reasonable attorneys’ fees and expenses incurred by the Company
or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Offered Shares for offer and sale under
the state securities or blue sky laws, and, if requested by the Representatives, preparing and
printing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters
of such qualifications, registrations, determinations and exemptions, (vii) the filing fees
incident to, and
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the reasonable fees and expenses of counsel for the Underwriters in connection
with, the NASD’s review and approval of the Underwriters’ participation in the offering and
distribution of the Offered Shares, (viii) the costs and expenses of the Company relating to
investor presentations on any “road show” undertaken in connection with the marketing of the
Offered Shares, including without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers of the Company and
any such consultants, and the cost of aircraft and other transportation chartered in connection
with the road shows, (ix) the fees and expenses associated with listing the Offered Shares on the
American Stock Exchange and (x) all other fees, costs and expenses referred to in Item 14 of Part
II of the Registration Statement. Except as provided in this Section 4, Section 7, Section 9 and
Section 10 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Expenses of the Selling Stockholder. The Selling Stockholder agrees with each Underwriter to pay (directly or by reimbursement)
all fees and expenses incident to the performance of its obligations under this Agreement which are
not otherwise specifically provided for herein, including but not limited to (i) fees and expenses
of counsel and other advisors for the Selling Stockholder and (ii) expenses and taxes incident to
the sale and delivery of the Offered Shares to be sold by the Selling Stockholder to the
Underwriters hereunder. This Section 5 shall not affect or modify any separate, valid agreement
relating to the allocation of payment of expenses between the Company, on the one hand, and the
Selling Stockholder, on the other hand.
Section 6. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Offered Shares as
provided herein on the First Closing Date and, with respect to the Optional Shares, each Option
Closing Date, shall be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Stockholder set forth in Sections 1(A) and 1(B) hereof as of the date
hereof and as of the First Closing Date as though then made and, with respect to the Optional
Shares, as of each Option Closing Date as though then made, to the timely performance by the
Company and the Selling Stockholder of their respective covenants and other obligations hereunder,
and to each of the following additional conditions:
(i) Xxxxxxx, Xxxxx & Xxxxx, LLP, independent certified public accountants for the
Company, (i) a letter dated the date hereof addressed to the Underwriters, in form and
substance satisfactory to the Representatives, containing statements and information of the
type ordinarily included in accountant’s “comfort letters” to underwriters, delivered
according to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited financial statements and certain financial information incorporated
by reference in the Registration Statement, Time of Sale Prospectus, and the Prospectus
(and the Representatives shall have received an additional four conformed copies of such
accountants’ letter for each of the several Underwriters), and (ii) confirming that they
are (A) independent public or certified public accountants as required by the Securities
Act and the Exchange Act and (B) in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission
(“Regulation S-X”); and
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(ii) Data & Consulting Services, Division of Schlumberger Technology Corporation,
reserve engineers for the Company, a letter dated the date hereof addressed to the
Underwriters, in the form attached hereto as Exhibit A (and the Representatives
shall have received an additional four conformed copies of such letter for each of the
several Underwriters).
(i) the Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner and within the
time period required by Rule 424(b) under the Securities Act; or the Company shall have
filed a post-effective amendment to the Registration Statement containing the information
required by such Rule 430A, and such post-effective amendment shall have become effective;
(ii) no stop order suspending the effectiveness of the Registration Statement, any
Rule 462(b) Registration Statement, or any post-effective amendment to the
Registration Statement, shall be in effect and no proceedings for such purpose shall
have been instituted or threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) for the period from and after the date of this Agreement and prior to such Closing
Date, there has not occurred any Material Adverse Change;
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(ii) the representations and warranties of the Company set forth in Section 1(A) of
this Agreement are true and correct with the same force and effect as though expressly made
on and as of such Closing Date; and
(iii) the Company has complied with all the agreements and covenants hereunder and
satisfied all the conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date.
(i) Xxxxxxx, Xxxxx & Xxxxx, LLP, independent certified public accountants for the
Company, a letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made in the letter
furnished by them pursuant to subsection (a)(i) of this Section 6, except that the
specified date referred to therein for the carrying out of procedures shall be no more than
three business days prior to the First Closing Date or the applicable Option Closing Date,
as the case may be (and the Representatives shall have received an additional four
conformed copies of such accountants’ letter for each of the several Underwriters); and
(ii) Data & Consulting Services, Division of Schlumberger Technology Corporation, a
letter dated such date, in form and substance satisfactory to the Representatives, to the
effect that they reaffirm the statements made in the letter furnished by them pursuant to
subsection (a)(ii) of this Section 6 (and the Representatives shall have received an
additional four conformed copies of such letter for each of the several Underwriters).
(i) the representations and warranties of the Selling Stockholder set forth in Section
1(B) of this Agreement are true and correct with the same force and effect as though
expressly made by the Selling Stockholder on and as of such Closing Date; and
(ii) the Selling Stockholder has complied with all the agreements and covenants and
satisfied all the conditions on its part to be performed or satisfied at or prior to such
Closing Date.
24
If any condition specified in this Section 6 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company and the
Selling Stockholder at any time on or prior to the First Closing Date and, with respect to the
Optional Shares, at any time prior to the applicable Option Closing Date, which termination shall
be without liability on the part of any party to any other party, except that Section 4, Section 7,
Section 9 and Section 10 shall at all times be effective and shall survive such termination.
Section 7. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the Representatives pursuant to Section 6 (other than
(b)(iii) or (e)), Section 12(i)(a) or Section 18, or if the sale to the Underwriters of the Offered
Shares on the First Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company or the Selling Stockholder to perform any agreement herein or to comply
with any provision hereof, the Company agrees to reimburse the Representatives and the other
Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by
the Representatives and the Underwriters in connection with the proposed purchase and the offering
and sale of the Offered Shares, including but not limited to reasonable fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. If this
Agreement is terminated pursuant to Section 11 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account
of those expenses.
Section 8. Effectiveness of this Agreement. This Agreement shall not become effective until the later of (i) the execution of this
Agreement by the parties hereto and (ii) notification by the Commission to the Company and the
Representatives of the effectiveness of the Registration Statement under the Securities Act.
25
statements therein, in the light of the circumstances under
which they were made, not misleading; and to reimburse each Underwriter and each such
controlling person for any and all expenses (including the reasonable fees and disbursements of one
counsel chosen by JRCO) as such expenses are reasonably incurred by such Underwriter or such
controlling person in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Representatives expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto),
it being understood and agreed that the only such information furnished by the Representatives to
the Company consists of the information described in subsection (c) below. The indemnity agreement
set forth in this Section 9(a) shall be in addition to any liabilities that the Company may
otherwise have.
26
27
Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local counsel), approved by the
indemnifying party, representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
Section 10. Contribution. If the indemnification provided for in Section 9 is for any reason held to be unavailable
to or otherwise insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder, on the one hand, and the Underwriters, on the other hand, from the offering of
the Offered Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Company
and the Selling Stockholder, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholder, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Offered Shares pursuant to
this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of
the Offered Shares pursuant to this Agreement (before deducting expenses) received by the Company
and the Selling Stockholder, and the total underwriting discount received by the Underwriters, in
each case as set forth on the front cover page of the Prospectus bear to the aggregate initial
public offering price of the Offered Shares as set forth on such cover. The relative fault of the
Company and the Selling Stockholder, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholder, on the one hand, or the
Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
28
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 9(d), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 9(d) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 10; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 9(d) for purposes of
indemnification.
The Company, the Selling Stockholder and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
10.
Notwithstanding the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Offered Shares underwritten by it and distributed to the public. 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. The Underwriters’ obligations to contribute pursuant to this Section 10 are
several, and not joint, in proportion to their respective underwriting commitments as set forth
opposite their names in Schedule A. For purposes of this Section 10, each officer and
employee of an Underwriter and each person, if any, who controls an Underwriter within the meaning
of the Securities Act and the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company with the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Notwithstanding the provisions of this Section 10, the Selling Stockholder shall not be
required to contribute any amount in excess of an amount equal to the initial public offering price
of the Secondary Shares sold by the Selling Stockholder, less the underwriting discount, as set
forth on the front cover page of the Prospectus.
Section 11. Default of One or More of the Several Underwriters. If, on the First Closing Date or the applicable Option Closing Date, as the case may be,
any one or more of the several Underwriters shall fail or refuse to purchase Offered
Shares that it or they have agreed to purchase hereunder on such date, and the aggregate
number of Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase does not exceed 10% of the aggregate number of the Offered Shares to be
purchased on such date, the Representatives may make arrangements satisfactory to the Company and
the Selling Stockholder for the purchase of such Offered Shares by other persons, including any of
the Underwriters, but if no such arrangements are made by such Closing Date, the other Underwriters
shall be obligated, severally, in the proportions that the number of Firm Shares set forth opposite
their respective names on Schedule A bears to the aggregate number of Firm Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase
the Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or
29
refused
to purchase on such date. If, on the First Closing Date or the applicable Option Closing Date, as
the case may be, any one or more of the Underwriters shall fail or refuse to purchase Offered
Shares and the aggregate number of Offered Shares with respect to which such default occurs exceeds
10% of the aggregate number of Offered Shares to be purchased on such date, and arrangements
satisfactory to the Representatives, the Company and the Selling Stockholder for the purchase of
such Offered Shares are not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of Section 4, Section
7, Section 9 and Section 10 shall at all times be effective and shall survive such termination. In
any such case the Representatives, the Company or the Selling Stockholder shall have the right to
postpone the First Closing Date or the applicable Option Closing Date, as the case may be, but in
no event for longer than seven days in order that the required changes, if any, to the Registration
Statement and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 11. Any action taken under this
Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 12. Termination of this Agreement. The Representatives, by notice given to the Company and the Selling Stockholder, shall have
the right to terminate this Agreement at any time prior to the First Closing Date or to terminate
the obligations of the Underwriters to purchase the Optional Shares at any time prior to the Option
Closing Date, as the case may be, if at any time (i)(a) trading or quotation in any of the
Company’s securities shall have been suspended or limited by the Commission or by the American
Stock Exchange or (b) trading in securities generally on the American Stock Exchange, the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum or
maximum prices shall have been generally established on any of such stock exchanges by the
Commission or the NASD; (ii) a general banking moratorium shall have been declared by any of
federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change in the United States
or international financial markets, or any substantial change or development involving a
prospective substantial change in United States’ or international political, financial or economic
conditions, as in the judgment of the Representatives is material and adverse and makes it
impracticable to market the Offered Shares in the manner and on the terms described in the Time of
Sale Prospectus or to enforce contracts for the sale of securities; or (iv) the Company shall have
sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such character
as in the judgment of the Representatives may interfere materially with the conduct of the business
and operations of the Company regardless of whether or not such loss
shall have been insured. Any termination pursuant to this Section 12 shall be without
liability on the part of (a) the Company or the Selling Stockholder to any Underwriter, except that
the Company and the Selling Stockholder shall be obligated to reimburse the expenses of the
Representatives and the Underwriters to the extent provided in Sections 4 and 7 hereof, (b) any
Underwriter to the Company or the Selling Stockholder, or (c) of any party hereto to any other
party except that the provisions of Section 9 and Section 10 shall at all times be effective and
shall survive such termination.
Section 13. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of
the Company, of its officers, of the Selling Stockholder and of the several Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of its or their
partners, officers or directors
30
or any controlling person, or the Selling Stockholder, as the case
may be, and will survive delivery of and payment for the Offered Shares sold hereunder and any
termination of this Agreement.
Section 14. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or
telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Xxxxxxx Xxxx & Company L.L.C.
KeyBanc Capital Markets, a Division of McDonald Investments, Inc.
Xxxxxx Xxxxxx & Company, Inc.
c/o Johnson Rice & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
KeyBanc Capital Markets, a Division of McDonald Investments, Inc.
Xxxxxx Xxxxxx & Company, Inc.
c/o Johnson Rice & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxx 00000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
0000 Xxxx Xxxxxx
Xxxxx 00000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
If to the Company:
Aurora Oil & Gas Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Fraser, Trebilcock, Xxxxx & Xxxxxx, P.C.
000 X. Xxxxxxx Xx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
000 X. Xxxxxxx Xx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
If to the Selling Stockholder:
Rubicon Master Fund
c/o Rubicon Fund Management LLP
000 Xxxxx Xx., Xxxxxx X0X0XX
Xxxxxx Xxxxxxx
Facsimile: (___)___-____
Attention:
c/o Rubicon Fund Management LLP
000 Xxxxx Xx., Xxxxxx X0X0XX
Xxxxxx Xxxxxxx
Facsimile: (___)___-____
Attention:
31
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 15. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Underwriters pursuant to Section 11 hereof, and to the benefit of the
employees, officers and directors and controlling persons referred to in Section 9 and Section 10,
and in each case their respective successors, and no other person will have any right or obligation
hereunder. The term “successors” shall not include any purchaser of the Offered Shares as such
from any of the Underwriters merely by reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to
be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such
minor changes) as are necessary to make it valid and enforceable.
Section 17. Governing Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in such state.
Section 18. Failure of the Selling Stockholder to Sell and Deliver Offered Shares. If the
Underwriters have fulfilled all of their obligations under this Agreement and the Selling
Stockholder shall fail to sell and deliver to the Underwriters the Offered Shares to be sold
and delivered by the Selling Stockholder at the First Closing Date pursuant to this Agreement, then
the Underwriters may at their option, by written notice from the Representatives to the Company and
the Selling Stockholder, either (i) terminate this Agreement without any liability on the part of
any Underwriter or, except as provided in Sections 4, 7, 9 and 10 hereof, the Company or the other
Selling Stockholder, or (ii) purchase the shares which the Company has agreed to sell and deliver
in accordance with the terms hereof. If the Selling Stockholder shall fail to sell and deliver to
the Underwriters the Offered Shares to be sold and delivered by the Selling Stockholder pursuant to
this Agreement at the First Closing Date, then the Underwriters shall have the right, by written
notice from the Representatives to the Company and the Selling Stockholder, to postpone the First
Closing Date, as the case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
Section 19. Actions by the Representatives. In all dealings under this Agreement, the Representatives shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given jointly by the
Representatives or by JRCO on behalf of the Representatives.
32
Section 20. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and
supersedes all prior written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition is meant to
benefit. The Section headings herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 9 and the contribution provisions of
Section 10, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 9 and 10 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, any preliminary
prospectus, the Prospectus (and any amendments and supplements thereto) and the Time of Sale
Prospectus, as required by the Securities Act and the Exchange Act.
33
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Representatives the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, | ||||
AURORA OIL & GAS CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
RUBICON MASTER FUND |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
XXXXXXX XXXX & COMPANY L.L.C.
KEYBANC CAPITAL MARKETS
a Division of McDonald Investments, Inc.
XXXXXX XXXXXX & COMPANY, INC.
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
KEYBANC CAPITAL MARKETS
a Division of McDonald Investments, Inc.
XXXXXX XXXXXX & COMPANY, INC.
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By XXXXXXX RICE & COMPANY L.L.C.
(On behalf of each of the Underwriters)
(On behalf of each of the Underwriters)
By:
Name: Xxxxxx X. Xxxxxxxx
Title: Partner
Name: Xxxxxx X. Xxxxxxxx
Title: Partner
[Signature page to Underwriting Agreement]
SCHEDULE A
Number of | ||||
Firm Shares | ||||
Underwriters | to be Purchased | |||
Xxxxxxx Rice & Company L.L.C |
[___] | |||
KeyBanc Capital Markets |
[___] | |||
Xxxxxx Xxxxxx & Company, Inc. |
[___] | |||
Total |
SCHEDULE B
Subsidiaries
1. | Celebration Mining Company | |
2. | Aurora Energy, Ltd. | |
3. | Xxxxxx Xxxxxx North, LLC | |
4. | Aurora Operating, LLC | |
5. | Xxxxxx Pipeline & Processing Co., LLC | |
6. | Bach Services & Manufacturing Company, L.L.C. | |
7. | Xxxxxxxx Development Company, L.L.C. |
EXHIBIT A
FORM OF RESERVE REPORT LETTER
(Data & Consulting Services, Division of Schlumberger Technology Corporation)
(Data & Consulting Services, Division of Schlumberger Technology Corporation)
A-1
EXHIBIT B
FORM OF OPINION OF COMPANY COUNSEL
(Fraser, Trebilcock, Xxxxx & Dunlop, P.C.)
(Fraser, Trebilcock, Xxxxx & Dunlop, P.C.)
The final opinion in draft form should be attached as Exhibit B at the time this Agreement is
executed.
Opinion of counsel for the Company to be delivered pursuant to Section 6(d) of the
Underwriting Agreement.
1. | The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Utah, and is duly qualified and is in good standing as a foreign corporation in the States of Michigan, Indiana, [ ] and [ ]. |
2. | The Company has the corporate power and authority to own, lease, hold and operate its properties and to conduct the business in which it is engaged as described in the Registration Statement, Prospectus and Time of Sale Prospectus, and to enter into and perform its obligations under the Underwriting Agreement. |
3. | Each subsidiary set forth on Exhibit A to such opinion (each, a “Subsidiary” and, collectively, the “Subsidiaries”) is a corporation, partnership or limited liability company, as applicable, duly incorporated or organized, validly existing and in good standing under the laws of the state of its incorporation or organization, with power and authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus. |
4. | Each Subsidiary is qualified to do business as a foreign corporation, partnership or limited liability company, as applicable, in good standing in each jurisdiction listed opposite its name on Exhibit A attached to such opinion. |
5. | The execution and delivery of the Underwriting Agreement by the Company and the performance by the Company of its obligations thereunder have been duly authorized by all necessary corporate action on the part of the Company. The Underwriting Agreement has been duly executed and delivered by the Company. |
6. | The execution and delivery of the Underwriting Agreement by the Company do not and the performance by the Company of its obligations under the Underwriting Agreement will not, (i) whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation of imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument (a) filed as an exhibit to the Registration Statement, the Company’s Annual Report on Form 10-KSB for the year ended December 31, 2005, the Company’s Quarterly Reports on Form 10-QSB for the quarterly periods ended March 31, 2006 and June 30, 2006, or any of the Company’s Current Reports on Form 8-K filed subsequent to December 31, 2006 and (b) to which the Company or any Subsidiary is a party or by which it is bound, or to which any of the assets, properties or operations of the Company or any Subsidiary is subject, and which is material to the Company or any Subsidiary, (ii) result in a violation of the Certificate of Incorporation or Bylaws (or similar organizational documents) of the Company or any Subsidiary, (iii) result |
B-1
in the violation of any law, rule or regulation of any Included Law or (iv) result in any violation of any order, writ, judgment or decree of any governmental authority known to such counsel. |
7. | No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Federal or state governmental authority or agency is legally required for the due execution and delivery of the Underwriting Agreement by the Company and the performance by the Company of its obligations under the Underwriting Agreement except for (i) those that have been obtained or made, (ii) those required under Federal and state securities laws or blue sky laws and (iii) those that may be required under the rules and regulations of the National Association of Securities Dealers. |
8. | The authorized capitalization of the Company is as set forth in the Registration Statement, the Prospectus and the Time of Sale Prospectus under “Description of Capital Stock.” The Common Stock conforms in all material respects to the descriptions thereof contained in the Registration Statement, the Prospectus and the Time of Sale Prospectus. All of the outstanding Shares have been duly authorized and validly issued, are fully paid and nonassessable. The form of certificate used to evidence the Shares is in due and proper form and complies with all applicable requirements of the charter and bylaws of the Company and the Business Corporations Act of the State of Utah. Except as set forth in the Registration Statement, the Prospectus or the Time of Sale Prospectus, to such counsel’s knowledge, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding. |
9. | All of the issued and outstanding capital stock or other equity or ownership interests of each Subsidiary have been duly authorized and validly issued, is fully paid and non-assessable and are owned of record by the Company, directly or through Subsidiaries of the Company. |
10. | There are no preemptive rights to subscribe for or to purchase the Offered Shares pursuant to the Company’s Certificate of Incorporation, the Business Corporations Act of the State of Utah or, to such counsel’s knowledge, any agreement or other instrument to which the Company is a party or by which it is bound. |
11. | The form of stock certificate used to evidence the Offered Shares is in a form that complies in all material respects with all applicable statutory requirements under the Business Corporations Act of the State of Utah. |
12. | The Offered Shares to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale pursuant to the Underwriting Agreement and, when issued and delivered by the Company pursuant to the Underwriting Agreement against payment of the consideration set forth therein, will be validly issued, fully paid and nonassessable. | |
13. | The Offered Shares have been approved for listing on the American Stock Exchange. |
14. | The Company was eligible to file the Registration Statement on Form SB-2 pursuant to General Instruction A.1 thereunder at the time of the filing thereof and as of the date hereof. The Registration Statement has been declared effective under the Securities Act and the Prospectus was filed with the Commission pursuant to Rule 424(b)[(1)] on . To such counsel’s knowledge, no stop order suspending the effectiveness of the Registration |
B-2
Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending before or contemplated by the Commission. |
15. | The Registration Statement and the Prospectus, and each amendment or supplement to the Registration Statement and the Prospectus, including the documents incorporated by reference therein, in each case as of their respective effective or issue dates (other than (i) the financial statements and notes thereto and schedules included or incorporated by reference therein or omitted therefrom, (ii) the summary reserve reports of the independent petroleum engineers included or incorporated by reference therein, or (iii) the other financial or reserve engineering data contained therein or omitted therefrom, as to which such counsel expresses no opinion) appeared on their faces to have complied as to form in all material respects with the requirements of the Securities Act. |
16. | The statements in the Prospectus and the Time of Sale Prospectus under the captions “Risk Factors—Risks Relating to Our Business—Our credit facilities have operating restrictions and financial covenants that limit our flexibility and may limit our borrowing capacity; needed increases in borrowing capacity may not be available,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources,” “Business—Regulatory Considerations,” “Management,” “Related Party Transactions,” “Description of Common Stock,” and in items 24 and 26 of the Registration Statement, in so far as such statements constitute a summary of the documents referred to therein, matters of law, legal conclusions or legal proceedings, fairly present in all material respects the information required to be shown. To such counsel’s knowledge, there are no contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement, the Prospectus and the Time of Sale Prospectus that are not filed or described as required. |
17. | To such counsel’s knowledge, no holder of any security of the Company has any right to require registration of shares of Common Stock or any other security of the Company in the Registration Statement that has not been waived. |
18. | The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
19. | To such counsel’s knowledge, the execution and delivery of the Underwriting Agreement by the Company do not and the performance by the Company of its obligations under the Underwriting Agreement (except as contemplated by the Registration Statement, the Prospectus or the Time of Sale Prospectus) will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation of imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the assets, properties or operations of the Company or any of its Subsidiaries is subject except for those conflicts, breaches, defaults, Repayment Events, liens, charges or encumbrances which, singularly or in the aggregate, would not cause a Material Adverse Change. |
20. | To such counsel’s knowledge, neither the Company nor any of its Subsidiaries is (i) in violation of its Certificate of Incorporation or Bylaws, (ii) in default, and no event has occurred, which, with notice or lapse of time or both, would constitute a default, in the |
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performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of it is subject or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject of which such counsel has knowledge or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of clauses (ii) and (iii), for those defaults, violations or failures which, singularly or in the aggregate, would not result in a Material Adverse Change. |
21. | To such counsel’s knowledge, each of the Company and its Subsidiaries possesses all licenses, certificates, authorizations and permits issued by the appropriate Federal, state or foreign regulatory authorities necessary to conduct its businesses, except for such licenses, certificates, authorizations or permits the failure of which to maintain would not cause a Material Adverse Change. To such counsel’s knowledge, neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Change. To such counsel’s knowledge, each of the Company and its Subsidiaries is in compliance with all applicable Federal, state, local and foreign laws, regulations, orders and decrees governing their business, except where noncompliance would not, singly or in the aggregate, result in a Material Adverse Change. |
22. | Except as disclosed in the Registration Statement, Prospectus or Time of Sale Prospectus, to such counsel’s knowledge, there is no pending or threatened action, suit, proceeding, inquiry or investigation to which the Company or any of its Subsidiaries is a party or to which the assets, properties or operations of the Company or any of its Subsidiaries is subject, before or by any governmental agency or body that is required to be disclosed therein or that could reasonably be expected to materially and adversely affect the consummation of the transactions contemplated under the Underwriting Agreement or the performance by the Company of its obligations thereunder. |
Negative Assurance
In the course of acting as counsel to the Company in connection with its preparation of the
Registration Statement, the Prospectus and the Time of Sale Prospectus, prior to the filing of the
Registration Statement, the Prospectus and the Time of Sale Prospectus, such counsel participated
in conferences and telephone conversations with representatives of the Company, representatives of
the independent public accountants for the Company, representatives of the independent petroleum
engineers of the Company, representatives of the Underwriters and representatives of the
Underwriters’ counsel, during which conferences and conversations the contents of the Registration
Statement, the Prospectus and the Time of Sale Prospectus and related matters were discussed, and
such counsel reviewed certain corporate records and documents furnished to such counsel by the
Company.
Based on such counsel’s participation in such conferences and conversations, such counsel’s
review of such records and documents as described above, such counsel’s understanding of the U.S.
Federal securities laws and the experience such counsel has gained in its practice thereunder, such
counsel advises you that no information has come to its attention that causes it to believe that
(1) the Registration Statement (except (i) the financial statements and
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notes thereto and schedules included or incorporated by reference therein or omitted
therefrom, (ii) the summary reserve reports of the independent petroleum engineers included or
incorporated by reference therein, or (iii) the other financial or reserve engineering data
contained or incorporated by reference therein or omitted therefrom, as to which such counsel
expresses no view), at the time the Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (2) the Time of Sale Prospectus (except
(i) the financial statements and notes thereto and schedules included or incorporated by reference
therein or omitted therefrom, (ii) the summary reserve reports of the independent petroleum
engineers included or incorporated by reference therein, or (iii) the other financial or reserve
engineering data contained or incorporated by reference therein or omitted therefrom, as to which
such counsel expresses no view), as of
P.M. (E.S.T.) on ______ ___, 2006 (which you have
informed us is a time prior to the first sale of the Securities by the Underwriters) included an
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 or (3) the Prospectus (except (i) the financial statements and notes thereto and
schedules included or incorporated by reference therein or omitted therefrom, (ii) the summary
reserve reports of the independent petroleum engineers included or incorporated by reference
therein, or (iii) the other financial or reserve engineering data contained or incorporated by
reference therein or omitted therefrom, as to which such counsel expresses no view), at the time
the Prospectus was filed with the Commission and as of the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits 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.
Such opinion shall be limited to the law of the State of Michigan, the Federal securities law
of the United States and the Business Corporations Act of the State of Utah.
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EXHIBIT C
FORM OF OPINION OF SELLING STOCKHOLDER’S COUNSEL
(Xxxxxxx Xxxx & Xxxxx LLP)
(Xxxxxxx Xxxx & Xxxxx LLP)
The final opinion in draft form should be attached as Exhibit C at the time this Agreement is
executed.
Opinion of counsel for the Company to be delivered pursuant to Section 6(h) of the
Underwriting Agreement.
1. | Based upon the foregoing and such other investigations as we have deemed necessary and subject to the qualifications included in this letter, we are of the opinion that assuming that you purchase the Shares on the First Closing Date for value and without notice of any “adverse claim” (as defined in Section 8-102(a)(1) of the Uniform Commercial Code as in effect on the First Closing Date in the State of New York (“NYUCC”)) with respect to the Shares, upon (i) (x) delivery to you of the stock certificate with respect to the Shares registered in the name of the Selling Stockholder with a duly executed and delivered stock power from the Selling Stockholder indorsed to you or (y) delivery to you of the stock certificate with respect to the Shares registered in your name and (ii) notation in the stock ledger of the Company of you as the registered owner of the Shares on the First Closing Date in the State of New York, you will be a “protected purchaser” (as defined in Section 8-303 of the NYUCC) with respect to the Shares, and you will acquire the Shares free and clear of any “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC). |
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EXHIBIT D
___, 2006
Xxxxxxx Rice & Company L.L.C.
As Representatives of the Several Underwriters
c/o Johnson Xxxx & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
RE: Aurora Oil & Gas Corporation (the “Company”)
Xxxxxxx Rice & Company L.L.C.
As Representatives of the Several Underwriters
c/o Johnson Xxxx & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
RE: Aurora Oil & Gas Corporation (the “Company”)
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain shares of common stock, par
value $.01 per share, of the Company (“Shares”) or securities convertible into or exchangeable or
exercisable for Shares. The Company proposes to carry out a public offering of Shares (the
“Offering”) for which you will act as the representative of the underwriters. The undersigned
recognizes that the Offering will be of benefit to the undersigned and will benefit the Company.
The undersigned acknowledges that you and the other underwriters are relying on the representations
and agreements of the undersigned contained in this letter in carrying out the Offering and in
entering into an underwriting arrangement with the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the undersigned will
not, (and will cause any spouse or immediate family member of the spouse or the undersigned living
in the undersigned’s household not to), without the prior written consent of Xxxxxxx Rice & Company
L.L.C. (which consent may be withheld in its sole discretion), directly or indirectly, sell, offer,
contract or grant any option to sell (including without limitation any short sale), pledge,
transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, or otherwise dispose of any Shares, options or
warrants to acquire Shares, or securities exchangeable or exercisable for or convertible into
Shares currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) by the undersigned (or such spouse or family
member), or publicly announce an intention to do any of the foregoing, for a period commencing on
the date hereof and continuing through the close of trading on the date 90 days after the date of
the Prospectus (as defined in the Underwriting Agreement relating to the Offering to which the
Company is a party) (the “Lock-Up Period”); provided, that if (i) during the last 17 days of the
Lock-up Period, the Company issues an earnings release or material news or a material event
relating to the Company occurs or (ii) prior to the expiration of the Lock-up Period, the Company
announces that it will release earnings results during the 16-day period beginning on the last day
of the Lock-up Period, then in each case the Lock-up Period will be extended until the expiration
of the 18-day period beginning on the date of the issuance of the earnings release or the
occurrence of the material news or material event, as applicable, unless Xxxxxxx Xxxx & Company
L.L.C. waives, in writing, such extension; provided, further, that the foregoing restrictions shall
not apply to the transfer of any or all of the Shares owned by the undersigned, either during the
undersigned’s lifetime or on death, by gift, will or intestate succession, to the immediate family
of the undersigned or to a trust the beneficiaries of which are exclusively the undersigned and/or
a member or members of the undersigned’s immediate family; provided, further, that the foregoing
restrictions shall not apply to the transfer by the undersigned to an affiliate; provided, however,
that in any such case, it shall be a condition to such transfer that the transferee executes and
delivers to Xxxxxxx Rice & Company L.L.C. an agreement stating that the transferee is receiving and
holding the Shares subject to the provisions of this letter agreement, and there shall be no
further transfer of such Shares, except in accordance with this letter agreement. The undersigned
hereby acknowledges and agrees that written notice of any extension of the Lock-up Period
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pursuant to the preceding sentence will be delivered by Xxxxxxx Xxxx & Company L.L.C. to the
Company and that any such notice properly delivered will be deemed to have been given to, and
received by, the undersigned.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of Shares or securities convertible
into or exchangeable or exercisable for Shares held by the undersigned except in compliance with
the foregoing restrictions.
With respect to the Offering only, the undersigned waives any registration rights relating to
registration under the Securities Act of any Shares owned either of record or beneficially by the
undersigned, including any rights to receive notice of the Offering.
It is understood that, if the Underwriting Agreement does not become effective, 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 Shares, the undersigned shall
be released from all obligations under this letter.
This agreement is irrevocable and will be binding on the undersigned and the respective
successors, heirs, personal representatives, and assigns of the undersigned. This agreement shall
be governed by and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state.
The undersigned acknowledges and agrees that whether or not any Offering actually occurs
depends on a number of factors, including market conditions.
Printed Name of Holder
By:
Signature
Signature
Printed Name of Person Signing
(and indicate capacity of person signing if
signing as custodian, trustee, or on behalf
of an entity)
signing as custodian, trustee, or on behalf
of an entity)
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