Exhibit 1
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XXXXXXX PETROLEUM CORPORATION
(a Delaware corporation)
_____________ Shares of Common Stock
PURCHASE AGREEMENT
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Dated: , 2003
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XXXXXXX PETROLEUM CORPORATION
(a Delaware corporation)
Shares of Common Stock
(Par Value $.001 Per Share)
PURCHASE AGREEMENT
, 2003
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Petroleum Corporation, a Delaware corporation (the "Company"),
Xxxxxxx Oil and Gas Corporation, a Delaware corporation that will be a
wholly-owned subsidiary of the Company ("Xxxxxxx Oil and Gas"), Alliant Energy
Resources, Inc. (the "Selling Stockholder"), a Wisconsin corporation and
wholly-owned subsidiary of Alliant Energy Corporation, a Wisconsin corporation
(the "Parent"), and the Parent, confirm their agreement with Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
each of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and X.X.
Xxxxxxx & Sons, Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the sale by the Selling Stockholder and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.001 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Selling Stockholder to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of additional shares of Common Stock to cover overallotments, if any. The
aforesaid shares of Common Stock (the "Initial Securities") to be purchased by
the Underwriters and all or any part of the shares of Common Stock subject to
the option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities".
Each of the Company, the Selling Stockholder and the Parent understands
that the Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has been
executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-107341), including
the related preliminary prospectus or prospectuses, covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act").
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of
such registration statement at the time it became effective pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information." Each
prospectus used before such registration statement became effective, and any
prospectus that omitted the Rule 430A Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits and any schedules thereto, at the time it became effective, and
including the Rule 430A Information, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus in the form
first furnished to the Underwriters for use in connection with the offering of
the Securities is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company and Xxxxxxx
Oil and Gas jointly and severally represent and warrant to each Underwriter as
of the date hereof, as of the Closing Time referred to in Section 2(c) hereof,
and as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and
agree with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of
the Company or Xxxxxxx Oil and Gas, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an 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. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus or
any amendments or supplements thereto made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
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Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants with respect to the Company
and Xxxxxxx Oil and Gas as required by the 1933 Act and the 1933 Act
Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly in all material respects, on the basis
set forth in the Registration Statement, the financial position of the
Company and Xxxxxxx Oil and Gas and Xxxxxxx Oil and Gas's consolidated
subsidiaries at the dates indicated and the statement of income,
stockholders' equity and cash flows of Xxxxxxx Oil and Gas and Xxxxxxx Oil
and Gas's consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with accounting
principles generally accepted in the United States ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting schedules,
if any, included in the Registration Statement present fairly in all
material respects in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, Xxxxxxx
Oil and Gas and Xxxxxxx Oil and Gas's subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered
into by the Company, Xxxxxxx Oil and Gas or any of Xxxxxxx Oil and Gas's
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company, Xxxxxxx Oil and Gas and Xxxxxxx
Oil and Gas's subsidiaries considered as one enterprise, and (C) except as
described in the Prospectus, there has been no dividend or distribution of
any kind declared, paid or made by the Company or Xxxxxxx Oil and Gas on
any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(vi) Good Standing of Subsidiaries. Each of Xxxxxxx Oil and Gas and
Xxxxxxx Programs, Inc. (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized
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and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each such Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Selling Stockholder and, at the Closing Time, will be owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary. As of the date of this Agreement, the
Company has no subsidiaries. At the Closing Time, the only subsidiaries of
the Company will be the subsidiaries listed on Exhibit 21 to the
Registration Statement.
(vii) Capitalization. As of the date of this Agreement, the
authorized, issued and outstanding capital stock of Xxxxxxx Oil and Gas is
as set forth in the Prospectus in the column entitled "Xxxxxxx Oil and Gas
Corporation Actual" under the caption "Capitalization," and immediately
following the purchase of the Initial Securities hereunder, the authorized,
issued and outstanding capital stock of the Company will be as set forth in
the Prospectus in the column entitled "Xxxxxxx Oil and Gas Corporation Pro
Forma, as Adjusted" (except for subsequent sales, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). At the Closing Time,
the shares of issued and outstanding capital stock of the Company will have
been duly authorized and validly issued and will be fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company at the Closing Time will have been issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(viii) Authorization of Agreement and Transaction Documents. This
Agreement has been duly authorized, executed and delivered by the Company
and Xxxxxxx Oil and Gas. Each of the documents relating to the transfer of
all the outstanding stock of Xxxxxxx Oil and Gas by the Selling Stockholder
to the Company in exchange for all the outstanding shares of Common Stock
(the "Share Exchange"), the sale by the Selling Stockholder of the
Securities hereunder, and the resulting divestiture by the Selling
Stockholder of a portion of its interest in the Company (the "Separation"),
including the Master Separation Agreement, the Tax Separation and
Indemnification Agreement, and the Registration Rights Agreement described
in the Prospectus (collectively, the "Transaction Documents") is or when
executed and delivered by the Company and Xxxxxxx Oil and Gas will be, duly
and validly authorized, executed and delivered by each of the Company and
Xxxxxxx Oil and Gas and is or will be, when executed and delivered by the
Company and Xxxxxxx Oil and Gas, a legally valid and binding obligation of
each of the Company and Xxxxxxx Oil and Gas enforceable against each of the
Company and Xxxxxxx Oil and Gas in accordance with its terms, except as
such enforcement may be subject to or limited by bankruptcy, insolvency and
general principles of equity.
(ix) Authorization and Description of Securities. The Securities, when
delivered by the Selling Stockholder pursuant to this Agreement against
payment of the consideration set forth herein, will have been duly
authorized and validly issued and will be fully paid and non-assessable; at
the Closing Time, the Common Stock will conform in all material respects to
all statements relating thereto contained in the Prospectus and such
description conforms in all
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material respects to the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal liability by
reason of being such a holder; and at the Closing Time, the Securities will
not be subject to the preemptive or other similar rights of any
securityholder of the Company.
(x) Absence of Defaults and Conflicts. None of the Company, Xxxxxxx
Oil and Gas or any of Xxxxxxx Oil and Gas's subsidiaries is in violation of
its respective charter or by-laws or in default in the 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 the Company, Xxxxxxx
Oil and Gas or any of Xxxxxxx Oil and Gas's subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company, Xxxxxxx Oil and Gas or any of Xxxxxxx Oil and Gas's
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such violations or defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement and the Transaction Documents and the consummation of the
transactions contemplated herein, in the Transaction Documents and in the
Registration Statement (including the issuance of the Securities in the
Share Exchange and sale of the Securities pursuant to this Agreement) and
compliance by each of the Company and Xxxxxxx Oil and Gas with its
respective obligations hereunder and pursuant to the Transaction Documents
have been duly authorized by all necessary corporate action and 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 property or assets of the Company
or any subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company, Xxxxxxx Oil and Gas or any subsidiary of Xxxxxxx
Oil and Gas 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, Xxxxxxx
Oil and Gas or any subsidiary of Xxxxxxx Oil and Gas or any of their
assets, properties or operations (except for such violations that would not
result in a Material Adverse Effect). 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, Xxxxxxx Oil and Gas or
any subsidiary of Xxxxxxx Oil and Gas.
(xi) Absence of Labor Dispute. No labor dispute with the employees of
the Company, Xxxxxxx Oil and Gas or any subsidiary of Xxxxxxx Oil and Gas
exists or, to the knowledge of the Company or Xxxxxxx Oil and Gas, is
imminent, and the Company and Xxxxxxx Oil and Gas are not aware of any
existing or imminent labor disturbance by the employees of any of their or
any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, would reasonably be expected to result
in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company or Xxxxxxx Oil and Gas, threatened, against or affecting the
Company, Xxxxxxx Oil and Gas or any subsidiary of Xxxxxxx Oil and Gas,
which is required to be disclosed in the Registration Statement (other than
as disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
Transaction Documents
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or the performance by the Company or Xxxxxxx Oil and Gas of their
respective obligations hereunder or thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company, Xxxxxxx Oil
and Gas or any subsidiary of Xxxxxxx Oil and Gas is a party or of which any
of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) Possession of Intellectual Property. The Company, Xxxxxxx Oil
and Gas and Xxxxxxx Oil and Gas's subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, 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 them, and none of the Company,
Xxxxxxx Oil and Gas or any of Xxxxxxx Oil and Gas's subsidiaries have
received any written 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, Xxxxxxx Oil and Gas or any of Xxxxxxx Oil and Gas's 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 Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by each of the Company and
Xxxxxxx Oil and Gas of its obligations hereunder, in connection with the
issuance of the Securities in the Share Exchange or the offering or sale of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement and the Transaction Documents, except such
as have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws.
(xvi) Absence of Manipulation. Neither the Company nor any affiliate
of the Company has taken, nor will the Company or any affiliate take,
directly or indirectly, any action which is designed to or which has
constituted or which would be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(xvii) Possession of Licenses and Permits. The Company, Xxxxxxx Oil
and Gas and Xxxxxxx Oil and Gas's subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure so to possess would not, singly
or in the aggregate, result in a Material Adverse Effect; the Company,
Xxxxxxx Oil and Gas and Xxxxxxx Oil and Gas's subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not, singly or in the aggregate,
result in a Material Adverse
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Effect; and none of the Company, Xxxxxxx Oil and Gas or any of Xxxxxxx Oil
and Gas's subsidiaries have received any written notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xviii) Title to Property. The Company, Xxxxxxx Oil and Gas and
Xxxxxxx Oil and Gas's subsidiaries have good and marketable title to all
real property owned by the Company, Xxxxxxx Oil and Gas and Xxxxxxx Oil and
Gas's subsidiaries, including, without limitation, all oil and gas
producing properties, and good title to all other properties owned by them,
including, without limitation, all assets and facilities used by Xxxxxxx
Oil and Gas and its subsidiaries in the production and marketing of oil and
gas, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company, Xxxxxxx Oil and Gas or any of Xxxxxxx Oil and Gas's subsidiaries;
and all of the leases and subleases material to the business of the
Company, Xxxxxxx Oil and Gas and Xxxxxxx Oil and Gas's subsidiaries,
considered as one enterprise, and under which the Company, Xxxxxxx Oil and
Gas or any of Xxxxxxx Oil and Gas's subsidiaries holds properties described
in the Prospectus, including, without limitation, all oil and gas producing
properties of Xxxxxxx Oil and Gas and its subsidiaries and all assets and
facilities used by Xxxxxxx Oil and Gas and its subsidiaries in the
production and marketing of oil and gas, are in full force and effect,
except where such would not have a Material Adverse Effect, and none of the
Company, Xxxxxxx Oil and Gas or any subsidiary of Xxxxxxx Oil and Gas has
any written notice of any material claim of any sort that has been asserted
by anyone adverse to the rights of the Company, Xxxxxxx Oil and Gas or any
subsidiary of Xxxxxxx Oil and Gas under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company,
Xxxxxxx Oil and Gas or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, except where
such would not have a Material Adverse Effect.
(xix) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) none of the Company, Xxxxxxx Oil and Gas or
any of Xxxxxxx Oil and Gas's subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products,
asbestos-containing materials or mold (collectively, "Hazardous Materials")
or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company, Xxxxxxx Oil and Gas and Xxxxxxx Oil
and Gas's subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the knowledge of
the Company or Xxxxxxx Oil and Gas, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company, Xxxxxxx Oil and Gas or any of
Xxxxxxx Oil and Gas's subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or
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governmental body or agency, against or affecting the Company, Xxxxxxx Oil
and Gas or any of Xxxxxxx Oil and Gas's subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xx) Registration Rights. Other than persons granted registration
rights pursuant to the Registration Rights Agreement among Parent, the
Company and the Selling Stockholder (the "Registration Rights Agreement"),
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxi) Absence of Further Requirements Regarding Separation. All
consents, approvals, authorizations and orders necessary, if any, to effect
the Separation have been obtained; after giving effect to the Separation,
the Company and its subsidiaries will have such Governmental Licenses as
are necessary to own their respective properties and to conduct their
respective businesses in the manner described in the Prospectus, subject to
such qualifications as may be set forth in the Prospectus and other than
such failures to have Governmental Licenses that would not, singly or in
the aggregate, have a Material Adverse Effect after giving effect to the
Separation; after giving effect to the Separation, the Company and its
subsidiaries will have, fulfilled and performed all their respective
material obligations with respect to such Governmental Licenses and no
event has occurred which allows (or after notice or lapse of time or both
would allow) revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit, subject
in each case to such qualification as may be set forth in the Prospectus
(and it being understood that certain Governmental Licenses, by their
respective terms, lapse as described in the Prospectus) and other than such
revocations and terminations which would not, singly or in the aggregate,
have a Material Adverse Effect after giving effect to the Separation; and,
except as described in the Prospectus, none of such Governmental Licenses
contains any restriction that, after giving effect to the Separation, would
reasonably be expected to result in a Material Adverse Effect.
(xxii) Independent Petroleum Engineers. Xxxxxx, Xxxxxxxxx &
Associates, Inc., whose report as of is referenced in the Prospectus,
was, as of the date of such report, and is, as of the date hereof, an
independent petroleum engineer with respect to Xxxxxxx Oil and Gas. X.X.
Xxxxxx & Associates, Inc., whose report as of is referenced in the
Prospectus, was, as of the dates of such report, and is, as of the date
hereof, an independent petroleum engineer with respect to Xxxxxxx Oil and
Gas. Xxxxx Xxxxx Company, L.P., whose report as of is referenced in the
Prospectus, was, as of the dates of such report, and is, as of the date
hereof, an independent petroleum engineer with respect to Xxxxxxx Oil and
Gas.
(xxiii) Accuracy of Reserve Information. The information underlying
the estimates of reserves of Xxxxxxx Oil and Gas and its subsidiaries,
which was supplied by Xxxxxxx Oil and Gas to Xxxxxx, Xxxxxxxxx &
Associates, Inc., X.X. Xxxxxx & Associates, Inc. and Xxxxx Xxxxx Company,
L.P. for purposes of auditing the reserve reports and estimates of Xxxxxxx
Oil and Gas and preparing the respective letters (the "Reserve Report
Letters" and each a "Reserve Report Letter") of each of Xxxxxx, Xxxxxxxxx &
Associates, Inc., X.X. Xxxxxx & Associates, Inc. and Xxxxx Xxxxx Company,
L.P. included as annexes to the Prospectus, including, without limitation,
production, costs of operation and development, current prices for
production, agreements relating to current and future operations and sales
of production, was true and correct in all material respects on the dates
such estimates were made and such information was supplied and was prepared
in accordance with customary industry practices; other than normal
production of the reserves and intervening spot market product price
fluctuations described in the Prospectus, neither the Company nor Xxxxxxx
Oil and Gas is aware of any facts or circumstances that would result in an
adverse change in the reserves, or the present value of future net cash
flows
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therefrom, as described in the Prospectus and as reflected in each Reserve
Report Letter, that would reasonably be expected to result in a Material
Adverse Effect; estimates of such reserves and present values as described
in the Prospectus and reflected in each Reserve Report Letter comply in all
material respects with the applicable requirements of Regulation S-X and
Industry Guide 2 under the 1933 Act.
(xxiv) Oil and Gas Agreements. The participation agreements, joint
development agreements, joint operating agreements, farm-out agreements and
other agreements described in the Prospectus relating to Xxxxxxx Oil and
Gas's rights with respect to the ownership, lease or operation of oil and
gas properties, the acquisition of interests in oil and gas properties or
the exploration for, development of or production of oil and gas reserves
thereon, constitute valid and binding agreements of Xxxxxxx Oil and Gas and
its subsidiaries that are parties thereto and, to the best knowledge of the
Company, of the other parties thereto, enforceable in accordance with their
terms, except as enforceability may be subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(xxv) Insurance. The Company and each of its subsidiaries maintain
insurance covering their properties, operations, personnel and businesses
that, in the Company's reasonable judgment, insures against such losses and
risks as are adequate in accordance with customary industry practices to
protect the Company and its subsidiaries and their businesses.
(xxvi) Internal Controls. Xxxxxxx Oil and Gas and each of its
subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(b) Representations and Warranties by the Parent and the Selling
Stockholder. The Parent and the Selling Stockholder, jointly and severally,
represent and warrant to each Underwriter as of the date hereof with respect to
itself, as of the Closing Time, and, if the Selling Stockholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agree with each Underwriter, as follows:
(i) Absence of Defaults and Conflicts. The execution and delivery of
this Agreement and the Transaction Documents and the sale and delivery of
the Securities to be sold by the Selling Stockholder and the consummation
of the transactions contemplated herein and pursuant to the Transaction
Documents and compliance by the Parent and the Selling Stockholder with
their respective obligations hereunder and pursuant to the Transaction
Documents have been duly authorized by the Parent and the Selling
Stockholder, as appropriate, and 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 under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities to
be sold by the Selling Stockholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other agreement or instrument to which the Parent or the Selling
Stockholder is a party or by which the Parent or the Selling Stockholder
may be bound, or to which any of the property or assets of the Parent or
the Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Parent or the
Selling Stockholder, if applicable, or any
9
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign (including ,without limitation, all local government
instrumentalities and courts, the Federal Energy Regulatory Commission
("FERC") and the Securities and Exchange Commission's regulations under the
Public Utility Holding Company Act of 1935, as amended (the "1935 Act")),
having jurisdiction over the Parent and the Selling Stockholder or any of
their respective properties.
(ii) Good and Marketable Title. The Selling Stockholder has and will
at the Closing Time and, if any Option Securities are purchased, on the
Date of Delivery, have good and marketable title to the Securities to be
sold by the Selling Stockholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and marketable title to
the Securities purchased by it from the Selling Stockholder, free and clear
of any security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iii) Absence of Manipulation. The Parent and the Selling Stockholder
have not taken, and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(iv) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by the Parent and the Selling
Stockholder of their respective obligations hereunder or pursuant to the
Transaction Documents, or in connection with the sale and delivery of the
Securities hereunder or the consummation of the transactions contemplated
by this Agreement and the Transaction Documents, except such as may have
previously been made or obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws.
(v) Authorization of Agreement and Transaction Documents. This
Agreement has been duly authorized, executed and delivered by the Parent
and the Selling Stockholder. Each of the Transaction Documents is or when
executed and delivered by the Parent and the Selling Stockholder will be,
duly and validly authorized, executed and delivered by the Parent and the
Selling Stockholder and is or will be, when executed and delivered by the
Parent and the Selling Stockholder, a legally valid and binding obligation
of the Parent and the Selling Stockholder enforceable against the Parent
and the Selling Stockholder in accordance with its terms, except as such
enforcement may be subject to or limited by bankruptcy, insolvency and
general principles of equity.
(vi) Absence of Further Requirements Regarding Separation. All
consents, approvals, authorizations and orders necessary to effect the
Separation have been obtained.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
10
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Selling Stockholder agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholder, at the price per share set forth in Schedule B,
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Stockholder hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to an additional shares of Common
Stock at the price per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Company and payable on
the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
overallotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by Xxxxxxx Xxxxx to the
Parent setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by Xxxxxxx Xxxxx, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as
Xxxxxxx Xxxxx in its discretion shall make to eliminate any sales or purchases
of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxxx
Oil and Gas, 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000-0000, or at such
other place as shall be agreed upon by the Representatives and the Parent, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Parent (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Parent, on each Date of Delivery as specified in the notice from the
Representatives to the Parent.
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to a bank account designated by the Selling
Stockholder, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial
11
Securities or the Option Securities, if any, to be purchased by any Underwriter
whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The Selling Stockholder will deliver the Initial Securities and the
Option Securities, if any, to the Representatives for the accounts of the
Underwriters through the facilities of the Depositary Trust Company ("DTC"),
against payment of the purchase price in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank reasonably
acceptable to Xxxxxxx Xxxxx drawn to the order of the Selling Stockholder prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
and will notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus and will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
copies (one of which shall be manually signed) of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and copies (one of which shall
be manually signed) of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
12
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such counsel, at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect the listing of
the Common Stock (including the Securities) on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period of 180 days from the
date of the Prospectus, the Company will not, without the prior written consent
of Xxxxxxx Xxxxx, (i) directly or indirectly, 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 or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or 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. The foregoing sentence shall not apply to (A) the Securities
13
to be sold hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a security outstanding
on the date hereof and referred to in the Prospectus, or (C) any shares of
Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the Prospectus.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the rules and regulations
of the Commission thereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Parent will pay all expenses incident to the performance
of its obligations and the obligations of the Company and the Selling
Stockholder under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and any
schedules or exhibits) as originally filed and of each amendment thereto, (ii)
the reproduction and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale or delivery of the Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, except for such fees and disbursements that the
Company and Xxxxxxx Oil and Gas are required to pay pursuant to the Master
Separation Agreement, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto (provided that counsel fees in connection
therewith do not exceed $5,000), (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the fees and expenses of any
transfer agent or registrar for the Securities, (viii) the costs and expenses of
the Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the Securities, 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 show, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, and (x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and Xxxxxxx Oil and Gas contained
in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
14
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
of each of (i) Xxxxx & Xxxxxxx, counsel for the Company, the Parent and the
Selling Stockholder to the effect set forth in Exhibit A hereto; (ii) Xxxxxxx
Xxxxxxxx Xxxx & Xxxxxx, P.C., counsel for the Company, to the effect set forth
in Exhibit B hereto; and (iii) Xxxxxx Xxxx & Priest LLP, special counsel for the
Company, the Parent and the Selling Stockholder to the effect set forth in
Exhibit C hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i), (ii), (v), (vi) (solely as
to preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Company), (viii) through (x), inclusive, (xi), (xiii)
(solely as to the information in the Prospectus under "Description of Capital
Stock--Common Stock") and the penultimate paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States, and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company, Xxxxxxx Oil and Gas and Xxxxxxx Oil and Gas's subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of the President or a
Vice President of the Company and Xxxxxxx Oil and Gas and of the chief financial
or chief accounting officer of the Company and Xxxxxxx Oil and Gas, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Company and Xxxxxxx Oil and Gas has complied in
all material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or, to
their knowledge, contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in
15
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(h) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit D hereto
signed by the persons listed on Schedule C hereto.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and Xxxxxxx Oil and Gas contained herein and the statements in
any certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and Xxxxxxx Oil and Gas
and of the chief financial or chief accounting officer of the Company and
Xxxxxxx Oil and Gas confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of Xxxxx &
Lardner, counsel for the Company, the Parent and the Selling Stockholder,
together with the favorable opinion of Xxxxxxx Xxxxxxxx Xxxx & Xxxxxx,
P.C., counsel for the Company and Xxxxxx Xxxx & Priest LLP, special counsel
for the Company, the Parent and the Selling Stockholder, each in form and
substance reasonably satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Deloitte & Touche LLP,
in form and substance satisfactory to the Representatives and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(f) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
16
(k) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance of the Securities in the Share Exchange and the sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(l) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Parent at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company, Xxxxxxx Oil and
Gas, the Parent and the Selling Stockholder, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an "Affiliate") and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Parent;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
17
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided, further, that this indemnity agreement shall not inure to
the benefit of any Underwriter or any person who controls such Underwriter on
account of any such loss, liability, claim, damage or expense arising out of any
such defect or alleged defect in any preliminary prospectus if a copy of the
Prospectus shall not have been given or sent by such Underwriter with or prior
to the written confirmation of the sale involved to the extent that (i) the
Prospectus would have cured such defect or alleged defect and (ii) sufficient
quantities of the Prospectus were timely made available to such Underwriter; and
provided, further, that notwithstanding the foregoing provisions, the aggregate
amount of the Parent's and the Selling Stockholder's indemnity and contribution
obligations under this Section 6 shall not exceed an amount equal to the net
cash proceeds (before deducting expenses) received by the Selling Stockholder
from the sale of Common Stock pursuant to this Agreement.
(b) Indemnification of Company, Xxxxxxx Oil and Gas, Parent, Selling
Stockholder, Directors and Officers. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, Xxxxxxx Oil and Gas, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls Xxxxxxx Oil
and Gas within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, the Parent, its directors and each person, if any, who controls the
Parent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act and the Selling Stockholder, its directors and each person, if any, who
controls the Selling Stockholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Parent. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. In addition, the indemnifying
party shall be entitled, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of any claim or
action brought against an
18
indemnified party with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that the Representatives shall have the right to employ one counsel (in
addition to local counsel) to represent them and those other Underwriters and
their respective officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Underwriters against the indemnifying party under this Section 6
if, in the reasonable judgment of the Representatives, either (i) there is an
actual or potential conflict between the position of the indemnifying party on
the one hand and the Underwriters on the other hand or (ii) there may be
defenses available to it or them that are different from or additional to those
available to the indemnifying party (in any of which events the indemnifying
party shall not have the right to direct the defense of such action on behalf of
the Representatives with respect to such different defenses), in any of which
events such reasonable fees and expenses shall be borne by the indemnifying
party. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) or settlement of any claim in connection with any violation
referred to in Section 6(e) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, Xxxxxxx
Oil and Gas, the Parent and the Selling Stockholder on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement 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) above but also the relative fault of
the Company, Xxxxxxx Oil and Gas, the Parent and the Selling Stockholder on the
one hand and of the Underwriters on the other hand in connection with the
statements or omissions, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, Xxxxxxx Oil and Gas, the
Parent and the Selling Stockholder on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses)
19
received by the Selling Stockholder and the Parent and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on the cover of the Prospectus.
The relative fault of the Company, Xxxxxxx Oil and Gas, the Parent 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 by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or any
violation of the nature referred to in Section 6(e) hereof.
The Company, Xxxxxxx Oil and Gas, the Parent, the Selling Stockholder and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 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 above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates shall have the same rights to
contribution as such Underwriter, and each director of the Company, Xxxxxxx Oil
and Gas, the Parent and the Selling Stockholder, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company, Xxxxxxx Oil and Gas, the Parent and the Selling Stockholder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates, any person controlling any Underwriter, its officers or directors or
any person controlling the Company, Xxxxxxx Oil and Gas, the Parent or the
Selling Stockholder and (ii) delivery of and payment for the Securities.
20
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Parent, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, Xxxxxxx Oil and Gas and Xxxxxxx
Oil and Gas's subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred after the date
hereof and prior to the Closing Time any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of the
Representatives, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) if a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, or (v) if a banking moratorium has been declared by either
Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation
of the Underwriters to purchase and of the Selling Stockholder to sell the
Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
21
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Selling Stockholder to sell the relevant Option
Securities, as the case may be, either the Representatives or the Parent shall
have the right to postpone Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this
Agreement, from the commencement of discussions with respect to the transactions
contemplated hereby, the Company (and each employee, representative or other
agent of the Company) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations
promulgated thereunder) of the transactions contemplated by this Agreement and
all materials of any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at 4 World Financial
Center, New York, New York 10080, attention of ; notices to the Company
and Xxxxxxx Oil and Gas shall be directed to them at 0000 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000-0000, attention of Xxxxx X. Xxxxxx; and notices
to the Parent and the Selling Stockholder shall be delivered to them at 0000
Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, 00000, attention of Xxxxxx X. Xxxxxx.
SECTION 13. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters and the Company, Xxxxxxx Oil and Gas, the
Parent and the Selling Stockholder and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company, Xxxxxxx Oil and Gas, the Parent and the Selling Stockholder and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company, Xxxxxxx Oil and Gas, the Parent and the Selling
Stockholder and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
22
SECTION 17. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters, the Company, Xxxxxxx Oil and Gas, the Parent and the
Selling Stockholder in accordance with its terms.
Very truly yours,
XXXXXXX PETROLEUM CORPORATION
By _________________________________
Title:
XXXXXXX OIL AND GAS CORPORATION
By _________________________________
Title:
ALLIANT ENERGY CORPORATION
By _________________________________
Title:
ALLIANT ENERGY RESOURCES, INC.
By _________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXXX & SONS, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By _______________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named
in Schedule A hereto.
24
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...................................
X.X. Xxxxxxx & Sons, Inc...................................
=============
Total......................................................
=============
Sch A-1
SCHEDULE B
XXXXXXX PETROLEUM CORPORATION
Shares of Common Stock
(Par Value $.001 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $ , being an amount equal to the initial
public offering price set forth above less $ per share; provided that
the purchase price per share for any Option Securities purchased upon the
exercise of the overallotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not
payable on the Option Securities.
Sch B-1
SCHEDULE C
[List of persons and entities subject to lock-up]
Sch C-1
Exhibit A
FORM OF OPINION OF XXXXX & LARDNER
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The authorized capital stock of the Company is as set forth in
the Prospectus under the caption "Description of Capital Stock;" the shares
of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; and,
to our best knowledge, none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(iv) The Securities, when delivered by the Selling Stockholder
pursuant to the Purchase Agreement against payment of the consideration set
forth therein, will have been duly authorized and validly issued and will
be fully paid and non-assessable.
(v) The Purchase Agreement and each of the Transaction Documents have
been duly authorized, executed and delivered by the Company, Xxxxxxx Oil
and Gas, the Parent and the Selling Stockholder.
(vi) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(vii) The Registration Statement, including any Rule 462(b)
Registration Statement and the Rule 430A Information, the Prospectus and
each amendment or supplement to the Registration Statement and Prospectus
as of their respective effective or issue dates (other than the financial
statements and supporting schedules included therein or omitted therefrom,
as to which we express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with the Delaware General Corporation
Law, with any applicable requirements of the charter and by-laws of the
Company and the requirements of the New York Stock Exchange.
(ix) The information in the Prospectus under "Description of Capital
Stock--Common Stock", "Business and Properties--Regulations--Environmental
Regulations," "Description of Capital Stock--Preferred Stock",
"Management--Change of Control
A-1
Arrangements" and "Relationship with Alliant Energy Corporation" and in the
Registration Statement under Item 14, to the extent that it constitutes
matters of law, summaries of legal matters, the Company's charter and
bylaws or legal proceedings, or legal conclusions, has been reviewed by us
and is correct in all material respects.
(x) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any domestic court or
governmental authority or agency (other than under the 1933 Act and the
1933 Act Regulations, which have been made or obtained, or as may be
required under (a) the securities or blue sky laws of the various states,
(b) the 1935 Act and the rules, regulations and orders of the Commission
under the 1935 Act and (c) the Natural Gas Act of 1938, the Natural Gas
Policy Act of 1978, the Natural Gas Wellhead Decontrol Act, the Outer
Continental Shelf Lands Act and the Interstate Commerce Act and the rules,
regulations and orders of the FERC and the Minerals Management Service, as
the case may be, under such Acts (collectively, the "Gas and Oil Acts and
Regulations"), as to which, in each case, we express no opinion) is
necessary or required in connection with the due authorization, execution
and delivery of the Purchase Agreement or the Transaction Documents by the
Company, Xxxxxxx Oil and Gas, the Parent or the Selling Stockholder or for
the issuance of the Securities in the Share Exchange, or the offering, sale
or delivery of the Securities pursuant to the Purchase Agreement or the
consummation of the transactions contemplated by the Purchase Agreement and
the Transaction Documents.
(xi) The execution, delivery and performance of the Purchase Agreement
and the Transaction Documents and the consummation of the transactions
contemplated in the Purchase Agreement, the Transaction Documents and in
the Registration Statement (including the issuance of the Securities
pursuant the Share Exchange and sale of the Securities pursuant to the
Purchase Agreement) and compliance by the Parent, the Selling Stockholder
and the Company with their respective obligations under the Purchase
Agreement and the Transaction Documents do not and will not, whether with
or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in
Section 1(a)(x) of the Purchase Agreement) under or, except as set forth in
the Registration Statement, result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
pursuant to those agreements identified on Schedule I to this opinion
(except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or Xxxxxxx Oil and Gas, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us (other than the 1935 Act and the rules, regulations and orders
of the Commission under the 1935 Act and the Gas and Oil Acts and
Regulations, as to which, in each case, we express no opinion), of any U.S.
government, government instrumentality or court, having jurisdiction over
the Company or Xxxxxxx Oil and Gas or any of their respective properties,
assets or operations.
(xii) To the best of our knowledge, other than persons granted
registration rights pursuant to the Registration Rights Agreement among
Parent, the Company and the Selling Stockholder. (the "Registration Rights
Agreement"), there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xiii) The Company is not required, and upon the issuance of the
Securities in the Share Exchange and sale of the Securities pursuant to the
Purchase Agreement will not be required, to register as an "investment
company" under the 1940 Act.
A-2
(xiv) Upon delivery of the Securities to be sold by the Selling
Stockholder and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim with respect to such Securities, each of the Underwriters will
receive title to the Securities purchased by it from the Selling
Stockholder, free and clear of any adverse claim.
(xv) To the best of our knowledge, the issuance of the Securities in
the Share Exchange is not subject to preemptive or other similar rights of
any securityholder of the Company.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule
430A Information, (except for financial statements and schedules and other
financial or statistical data included therein or omitted therefrom, as to
which we make no statement), at the time such Registration Statement or any
such amendment 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 or that
the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial or statistical data included
therein or omitted therefrom, as to which we make no statement), at the
time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, 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.
In rendering such opinion, such counsel may rely as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company, the Parent and the Selling Stockholder and
public officials. In giving such opinion such counsel may, as to all matters
governed by the laws of jurisdictions other than the law of the State of
Wisconsin, the federal law of the United States, and the General Corporation Law
of the State of Delaware, assume that the applicable laws of such other
jurisdictions are identical in all relevant respects to the substantive laws of
the State of Wisconsin. Such opinion shall not state that it is to be governed
or qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-3
Schedule I
1. Indenture of Mortgage or Deed of Trust dated August 1, 1941, between
Wisconsin Power and Light Company ("WP&L") and First Wisconsin Trust Company
(n/k/a U.S. Bank National Association) and Xxxxxx X. Xxxxxx (Xxxxxx X. Xxxxx,
successor), as Trustees.
2. Rights Agreement, dated January 20, 1999, between Alliant Energy
Corporation ("AEC") (formerly Interstate Energy Corporation) and Xxxxx Fargo
Bank Minnesota, N.A., successor.
3. Indenture, dated as of June 20, 1997, between WP&L and Firstar Trust
Company (n/k/a U.S. Bank National Association), as Trustee, relating to debt
securities.
4. Officers' Certificate, dated as of June 25, 1997, creating the 7%
debentures due June 15, 2007 of WP&L.
5. Officers' Certificate, dated as of October 27, 1998, creating the 5.70%
debentures due October 15, 2008 of WP&L.
6. Officers' Certificate, dated as of March 1, 2000, creating the 7-5/8%
debentures due March 1, 2010 of WP&L.
7. Credit Agreement, dated as of September 30, 2003, among WP&L, the Banks
named therein and Bank One NA, as Administrative Agent.
8. Indenture of Mortgage and Deed of Trust, dated as of September 1, 1993,
between Interstate Power and Light Company ("IP&L") (formerly Iowa Electric
Light and Power Company ("IE")) and the First National Bank of Chicago (Bank One
Trust Company, National Association, successor), as Trustee ("1993 Indenture").
9. First through Fifth Supplemental Indentures to IP&L's 1993 Indenture.
10. Indenture of Mortgage and Deed of Trust, dated as of August 1, 1940,
between IP&L (formerly IE) and the First National Bank of Chicago (Bank One
Trust Company, National Association, successor), Trustee ("1940 Indenture").
11. First through Sixty-Third Supplemental Indentures to IP&L's 0000
Xxxxxxxxx.
12. Indenture or Deed of Trust, dated as of February 1, 1923, between IP&L
(formerly IES Utilities Inc. ("IESU"), successor to Iowa Southern Utilities
Company ("IS") as a result of the merger of IS and IE), and The Northern Trust
Company (Bank One Trust Company, National Association, successor) and Xxxxxx X.
Xxxxxxxx (Xxxxxxxx Xxxxxxx, successor), as Trustees ("1923 Indenture").
13. First through Twenty-Fourth Supplemental Indentures, dated May 1, 1940,
through December 1, 1994, to IP&L's 1923 Indenture.
14. Indenture (for Unsecured Subordinated Debt Securities), dated as of
December 1, 1995, between IP&L (formerly IESU) and The First National Bank of
Chicago (Bank One Trust Company, National Association, successor), as Trustee.
A-4
15. Indenture (for Senior Unsecured Debt Securities), dated as of August 1,
1997, between IP&L (formerly IESU) and The First National Bank of Chicago (Bank
of One Trust Company, National Association, successor), as Trustee.
16. Officers' Certificate, dated as of August 4, 1997, creating IP&L's
6-5/8% Senior Debentures, Series A, due 2009.
17. Officers' Certificate, dated as of March 6, 2001, creating IP&L's
6-3/4% Senior Debentures, Series B, due 2011.
18. Officers' Certificate, dated as of September 10, 2003, creating IP&L's
5.875% Senior Debentures, due 2018.
19. Indenture of IP&L (successor to Interstate Power Company ("IPC") to
JPMorgan Chase Bank (formerly The Chase Manhattan Bank) and Xxxx X. Xxxxxxx
(Xxxxx X. Xxxxxxx, successor), as Trustees, dated January 1, 1948 securing First
Mortgage Bonds ("1948 Indenture").
20. First through Twenty-First Supplemental Indentures, dated January 1,
1948, through December 31, 2001, to IP&L's 0000 Xxxxxxxxx.
21. Credit Agreement, dated as of September 30, 2003, among IP&L, the Banks
set forth therein, and Bank One NA, as Administrative Agent.
22. Fourth Amended and Restated Credit Agreement dated as of September 30,
2003 by and among Xxxxxx Fuel, Inc., the Banks now or after party thereto and
Bank One, NA, as Agent; the Note Purchase Agreement, dated September 30, 2003,
between Xxxxxx Fuel, Inc. and Allstate Life Insurance Company and the Third
Amended and Restated Consent and Agreement dated as of September 30, 2003 by
IP&L.
23. Indenture, dated as of November 4, 1999, among Alliant Energy
Resources, Inc. ("AER"), AEC, as Guarantor, and Firstar Bank, N.A., as Trustee.
24. First Supplemental Indenture, dated as of November 4, 1999, among AER,
AEC, as Guarantor, and Firstar Bank, N.A. (n/k/a U.S. Bank National
Association), as Trustee.
25. Second Supplemental Indenture, dated as of February 1, 2000, among AER,
AEC, as Guarantor, and Firstar Bank, N.A. (n/k/a U.S. Bank National
Association), as Trustee.
26. Third Supplemental Indenture, dated as of November 15, 2001, among AER,
AEC, as Guarantor, and Firstar Bank, N.A. (n/k/a U.S. Bank National
Association), as Trustee.
27. Fourth Supplemental Indenture, dated as of December 26, 2002, among
AER, AEC, as Guarantor, and U.S. Bank National Association, as Trustee.
28. 364-Day Credit Agreement, dated as of September 30, 2003, among AEC,
the Banks named therein and Bank One, NA, as Administrative Agent.
29. Credit Agreement, dated as of December 20, 2002, among Xxxxxxx Oil and
Gas Corporation (f/k/a Xxxxxxx Petroleum Corporation), the financial
institutions listed therein, Bank One, NA, as Administrative Agent, and Wachovia
Bank, N.A., as Syndication Agent.
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30. First Amendment to Credit Agreement, effective as of January 7, 2003,
among Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx Petroleum Corporation),
Bank One, NA, as Administrative Agent, and the financial institutions party
thereto.
31. Second Amendment to Credit Agreement, effective as of June 30, 2003,
among Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx Petroleum Corporation),
Bank One, NA, as Administrative Agent, and the financial institutions party
thereto.
32. Third Amendment to Credit Agreement, effective , 2003, among
Xxxxxxx Oil and Gas Corporation, Bank One, NA, as Administrative Agent, and the
financial institutions party thereto.
33. Service Agreement (Non-Utility Companies), dated May 22, 1998, among
Alliant Industries, Inc. (n/k/a Alliant Energy Resources, Inc.), IPC Development
Company, Inc. and Alliant Services Company, Inc. (n/k/a Alliant Energy Corporate
Services, Inc.).
34. Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx Petroleum Corporation)
Production Participation Plan.
35. First Amendment to Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx
Petroleum Corporation) Production Participation Plan.
36. Second Amendment to Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx
Petroleum Corporation) Production Participation Plan.
37. Third Amendment to Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx
Petroleum Corporation) Production Participation Plan.
38. Fourth Amendment to Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx
Petroleum Corporation) Production Participation Plan.
39. Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx Petroleum Corporation)
Phantom Equity Plan.
40. First Amendment to Xxxxxxx Oil and Gas Corporation (f/k/a Xxxxxxx
Petroleum Corporation) Phantom Equity Plan.
41. Second Amendment to Xxxxxxx Oil and Gas Corporation Phantom Equity
Plan.
42. Xxxxxxx Petroleum Corporation 2003 Equity Incentive Plan.
A-6
Exhibit B
FORM OF OPINION OF XXXXXXX XXXXXXXX XXXX & XXXXXX, P.C.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect. Except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of our
knowledge, is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and, to the best of our knowledge, none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(ii) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Company, Xxxxxxx Oil and Gas or any subsidiary is a party, or to which the
property of the Company, Xxxxxxx Oil and Gas or any subsidiary is subject,
before or brought by any domestic court or governmental agency or body,
which would reasonably be expected to result in a Material Adverse Effect,
or which would reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the Company or
Xxxxxxx Oil and Gas or any of their respective obligations thereunder.
(iii) All descriptions in the Registration Statement of contracts and
other documents to which the Company, Xxxxxxx Oil and Gas or any of their
respective subsidiaries are a party are, to the best of our knowledge,
accurate in all material respects; to the best of our knowledge, there are
no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed as
exhibits thereto.
(iv) The information in the Prospectus under "Business and
Properties--Regulation", "Business and Properties--Legal Proceedings",
"Business and Properties--Environmental and Safety" and "Business and
Properties--Title to Properties", to the extent that it constitutes matters
of law, summaries of legal matters or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(v) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any domestic court or
governmental authority or agency pursuant to the Natural Gas Act of 1938,
the Natural Gas Policy Act of 1978, the Natural Gas Wellhead Decontrol Act,
the Outer Continental Shelf Lands Act and the Interstate Commerce Act and
the rules, regulations and orders of the FERC and the Minerals Management
Service, as the case may be, under such Acts is necessary or required in
connection with the due authorization, execution
B-1
or delivery of the Purchase Agreement or for the offering, sale or delivery
of the Securities or in connection with the Separation and the execution of
the Transaction Documents.
(vi) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement (including the issuance of the
Securities in the Share Exchange and sale of the Securities pursuant to the
Purchase Agreement) and compliance by Xxxxxxx Oil and Gas with its
obligations under the Purchase Agreement do not and will not, whether with
or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in
Section 1(a)(x) of the Purchase Agreement) under or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of Xxxxxxx Oil and Gas or any subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or any other agreement or instrument, known to us, to which Xxxxxxx Oil and
Gas or any subsidiary is a party or by which it or any of them may be
bound, or to which any of the property or assets of Xxxxxxx Oil and Gas or
any subsidiary is subject (except for such conflicts, breaches, defaults or
Repayment Events or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of Xxxxxxx Oil and Gas or any
subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us (other than the 1935 Act and the rules,
regulations and orders of the Commission under the 1935 Act, as to which we
express no opinion), of any U.S. government, government instrumentality or
court, having jurisdiction over Xxxxxxx Oil and Gas or any subsidiary or
any of their respective properties, assets or operations.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule
430A Information, (except for financial statements and schedules and other
financial or statistical data included therein or omitted therefrom, as to
which we make no statement), at the time such Registration Statement or any
such amendment 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 or that
the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial or statistical data included
therein or omitted therefrom, as to which we make no statement), at the
time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, 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.
In rendering such opinion, such counsel may rely, as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. In giving such opinion
such counsel may, as to all matters governed by the laws of jurisdictions other
than the law of the State of Colorado, the federal law of the United States, and
the General Corporation Law of the State of Delaware, assume that the applicable
laws of such other jurisdictions are identical in all relevant respects to the
substantive laws of the State of Colorado. Such opinion shall not state that it
is to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
B-2
Exhibit C
FORM OF OPINION OF XXXXXX XXXX & PRIEST LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The information in the Prospectus under "Business--Regulation--
Public Utility Holding Company Act of 1935", to the extent that it
constitutes matters of law, summaries of legal matters, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(ii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency pursuant to the 1935 Act (other than those that have
been made or obtained) is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement or for the
issuance of the Securities in the Share Exchange or the offering, sale or
delivery of the Securities pursuant to the Purchase Agreement or in
connection with the Separation and the execution of the Transaction
Documents.
(iii) The execution, delivery and performance of the Purchase
Agreement and the Transaction Documents and the consummation of the
transactions contemplated in the Purchase Agreement, the Transaction
Documents and in the Registration Statement (including the issuance and
sale of the Securities) and compliance by the Company, the Parent and the
Selling Stockholder with their respective obligations under the Purchase
Agreement and the Transaction Documents do not and will not, whether with
or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, the 1935 Act (except for such conflicts and
breaches that would not have a Material Adverse Effect).
In rendering such opinion, such counsel may rely as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company, the Parent and the Selling Stockholder and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
C-1
Exhibit D
[Form of lock-up from directors, officers or other stockholders
pursuant to Section 5(i)]
, 2003
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
X.X. Xxxxxxx & Sons, Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by Xxxxxxx Petroleum Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Xxxxxxx Petroleum Corporation, a Delaware corporation (the "Company"),
understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and X.X. Xxxxxxx & Sons, Inc. propose to enter
into a Purchase Agreement (the "Purchase Agreement") providing for the public
offering of shares (the "Securities") of the Company's common stock, par value
$.001 per share (the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder [and an officer
and/or director] of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each underwriter to be named in the Purchase Agreement that, during
a period of 180 days from the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of Xxxxxxx Xxxxx, directly or
indirectly, (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 for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition (collectively, the "Lock-Up Securities") or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Lock-Up Securities, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may transfer the Lock-Up
Securities without the prior written consent of Xxxxxxx Xxxxx, (i) as a bona
fide gift or gifts, provided that the donee or donees thereof agree to be bound
in writing by the restriction set forth herein, or (ii) to any trust for the
direct or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any such
transfer shall not involve a disposition for value. For purposes of this lock-up
agreement, "immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. The undersigned also agrees and
consents to the entry of stop transfer instructions with the
D-1
Company's transfer agent and registrar against the transfer of the
Lock-Up Securities except in compliance with the foregoing restrictions.
Very truly yours,
Signature:
------------------------------
Print Name:
-----------------------------
D-2
