WHITING PETROLEUM CORPORATION (a Delaware corporation) 5,000,000 Shares of Common Stock PURCHASE AGREEMENT
Exhibit 1.1
XXXXXXX PETROLEUM CORPORATION
(a Delaware corporation)
5,000,000 Shares of Common Stock
(a Delaware corporation)
5,000,000 Shares of Common Stock
Dated: June 27, 2007
XXXXXXX PETROLEUM CORPORATION
(a Delaware corporation)
5,000,000 Shares of Common Stock
(Par Value $.001 Per Share)
PURCHASE AGREEMENT
(a Delaware corporation)
5,000,000 Shares of Common Stock
(Par Value $.001 Per Share)
PURCHASE AGREEMENT
June 27, 2007
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
as Representatives of the several Underwriters named in Schedule A hereto
as Representatives of the several Underwriters named in Schedule A hereto
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Petroleum Corporation, a Delaware corporation (the “Company”) confirms its agreement
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and
X.X. Xxxxxx Securities Inc. (“JPMorgan”) 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 JPMorgan are acting as
representatives (in such capacity, the “Representatives”), with respect to the issue and sale by
the Company 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 Company to the
Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 750,000 additional shares of Common Stock to cover overallotments, if
any. The aforesaid 5,000,000 shares of Common Stock (the “Initial Securities”) to be purchased by
the Underwriters and all or any part of the 750,000 shares of Common Stock subject to the option
described in Section 2(b) hereof (the “Option Securities”) are hereinafter called, collectively,
the “Securities.”
The Company 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”) an
automatic shelf registration statement on Form S-3 (No. 333-133889), including the related
preliminary prospectus or prospectuses, which registration statement became effective upon filing
under Rule 462(e) of the rules and regulations of the Commission (the “1933 Act Regulations”) under
the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement covers the
registration of the Securities under 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 430B (“Rule 430B”) of the 1933
Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. Any
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 and included in such registration
statement pursuant to Rule 430B is referred to as “Rule 430B Information.” Each prospectus used in
connection with the offering of the Securities that omitted Rule 430B Information is herein called
a “preliminary prospectus.” Such registration statement, at any given time, including the
amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time
and the documents otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations, is herein called the “Registration Statement.” The Registration Statement at the time
it originally became effective is herein called the “Original Registration Statement.” The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at the time of the execution of this Agreement and any preliminary
prospectuses that form a part thereof, 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”).
All references in this Agreement to financial statements and schedules and other information
that is “described,” “contained,” “included” or “stated” in the Registration Statement, any
preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information that is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case
may be; and all references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is incorporated by reference in or otherwise deemed
by 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations and (D) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405(1)(i)(A) of the 1933 Act Regulations
(“Rule 405”), including not having been and not being an “ineligible issuer” as defined in
Rule 405. The Registration Statement is an “automatic shelf registration statement,” as
defined in Rule 405, and the Securities, since their registration on the Registration
Statement, have been and remain eligible for registration by the Company on a Rule 405
“automatic shelf registration statement”. The Company has not received from the
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Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting
to the use of the automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(ii) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”) on May 8, 2006, and any post-effective amendment thereto
also became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement 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, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with the exemption provided by
Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise complied with the
requirements of Rule 163, including without limitation the legending requirement, to qualify
such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration
Statement 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.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of
the Original Registration Statement or 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.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus
(as defined below) issued at or prior to the Applicable Time (as defined below) and the
Statutory Prospectus (as defined below)as of the Applicable Time and the information
included on Schedule E, all considered together (collectively, the “General Disclosure
Package”), nor (y) any
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individual Issuer Limited Use Free Writing Prospectus, when considered together with
the General Disclosure Package, included any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00 am (Eastern time) on June 28, 2007 or such other time as
agreed by the Company and Xxxxxxx Xxxxx.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule C hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other prospectus deemed to
be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representatives as described in Section 3(e),
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein.
(iii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”), and, when read together with the other
information in the Prospectus, (a) at the time the Original Registration Statement became
effective, (b) at the earlier of time the Prospectus was first used and the date and time of
the first contract of sale of Securities in this
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offering and (c) at the Closing Time, 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.
(iv) 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 as required by the 1933 Act and the 1933 Act
Regulations.
(v) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly in all material respects, on the basis set forth
in the Prospectus, the financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of income, stockholders’ equity and cash flows of
Company and its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting principles 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 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.
All disclosures contained in the Registration Statement, the General Disclosure Package
or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the
rules and regulations of the Commission) comply in all material respects with Regulation G
of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent applicable.
(vi) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package 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 and its 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 or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Company and
its 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 on any class of its capital stock.
(vii) 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.
(viii) Good Standing of Subsidiaries. Each of Xxxxxxx Oil and Gas Corporation,
Xxxxxxx Programs, Inc. and Equity Oil Company (each a “Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly existing as a corporation in good
standing
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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 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 only subsidiaries of the Company are the
Subsidiaries, Xxxxxxx Transpetco LP, LLC and Xxxxxxx Transpetco GP, LLC. The subsidiaries
of the Company, other than the Subsidiaries, considered in the aggregate as a single
subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of
Regulation S-X.
(ix) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus). 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; 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.
(x) Authorization and Enforceability of Agreements. This Agreement has been
duly authorized, executed and delivered by the Company.
(xi) Authorization and Description of Securities. The Securities to be
purchased by the Underwriters from the Company have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set forth herein,
will be validly issued, fully paid and non-assessable; the Common Stock conforms in all
material respects to all statements relating thereto contained in the Prospectus and such
description conforms in all 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 the Securities are not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xii) Absence of Defaults and Conflicts. Neither the Company nor any of its
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 or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property or assets of the
Company or any of its 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 consummation of the
transactions contemplated herein and in the Registration Statement (including the offering,
issuance and sale of the Securities pursuant to this Agreement and the use of the proceeds
to the Company from the sale of the Securities as described in the Prospectus under the
caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice
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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 of its
subsidiaries 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 or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their 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 or any of its subsidiaries.
(xiii) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary of the Company exists or, to the knowledge of the Company, is
imminent, and the Company is 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.
(xiv) 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, threatened, against or affecting
the Company or any subsidiary of the Company, 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 performance by the Company its
obligations hereunder. The aggregate of all pending legal or governmental proceedings to
which the Company or any subsidiary of the Company 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.
(xv) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvi) Possession of Intellectual Property. The Company and its 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
neither the Company nor any of its subsidiaries has 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 or any
of its subsidiaries therein, and which infringement or conflict (if
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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.
(xvii) 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 the Company
of its obligations hereunder, in connection with the offering, issuance or sale by the
Company of the Securities hereunder or the consummation of the transactions contemplated by
this Agreement, except as such as have been already obtained or made or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws.
(xviii) 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.
(xix) Possession of Licenses and Permits. The Company and its 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 and its 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 Effect; and
neither the Company nor any of its subsidiaries has 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.
(xx) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its 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
the Company 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
or any of its subsidiaries; and all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Prospectus, including, without
limitation, all oil and gas producing properties of the Company and its subsidiaries and all
assets and facilities used by the Company 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 neither the Company nor any of its subsidiaries has any written
notice of any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such subsidiary to
the continued
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possession of the leased or subleased premises under any such lease or sublease, except
where such would not have a Material Adverse Effect.
(xxi) 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) neither the Company nor any of its 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 and
its 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, 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 or any of its 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 governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) Registration Rights. 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.
(xxiii) Independent Petroleum Engineers. Xxxxxx, Xxxxxxxxx & Associates, Inc.,
whose report as of December 31, 2006 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 the Company and its subsidiaries. X.X. Xxxxxx & Associates, Inc., whose report as of
December 31, 2006 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 the Company and
its subsidiaries. Xxxxx Xxxxx Company, L.P., whose report as of December 31, 2006 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 the Company and its subsidiaries.
(xxiv) Accuracy of Reserve Information. The information underlying the
estimates of reserves of the Company and its subsidiaries, which was supplied by the Company
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 the Company 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., 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 its subsidiaries is aware of any
9
facts or circumstances that would result in an adverse change in the reserves, or the
present value of future net cash flows 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.
(xxv) 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 the Company or its subsidiaries’ 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 the Company 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 the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xxvi) 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.
(xxvii) Accounting Controls and Disclosure Controls. The Company and each of
its subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (1) transactions are executed in accordance with management’s
general or specific authorization; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (3) access to assets is permitted only in accordance with management’s general
or specific authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. Since the end of the Company’s most recent audited fiscal year, there has
been (I) no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (II) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
The Company maintains disclosure controls and procedures that are designed to ensure
that information required to be disclosed by the Company in the reports that it files or
submits under the 1934 Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is accumulated and communicated
to the Company’s management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(xxviii) Pending Proceedings and Examinations. The Registration Statement is
not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities.
10
SECTION 2. Sale and Delivery to Underwriters; Closing.
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 Company, on each Date of Delivery as specified in the notice
from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, for its account, to accept delivery of, receipt for,
and make
11
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 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.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
12
any preliminary prospectus (including any prospectus included in the Original Registration
Statement or amendment thereto at the time it became effective) or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company 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. The Company has given the
Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within
48 hours prior to the Applicable Time; the Company will give the Representative(s) notice of its
intention to make any such filing from the Applicable Time to the Closing Time and will furnish the
Representative(s) with copies of any such documents a reasonable amount of time prior to such
proposed filing and will not file or use any such document to which the Representative(s) or
counsel for the Underwriters shall reasonably object.
13
event or development as a result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration Statement (or any other
registration statement relating to the Securities) or the Statutory Prospectus or any preliminary
prospectus or included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at that subsequent time, not misleading, the Company will promptly
notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(i) Listing. The Company will use its best efforts to effect the listing of the Securities on
the New York Stock Exchange.
14
release or the occurrence of the material news or material event, as applicable, unless
Xxxxxxx Xxxxx and JPMorgan waive, in writing, such extension.
SECTION 4. Payment of Expenses.
15
of counsel for the Underwriters in connection therewith and in connection with the preparation
of one Blue Sky Survey, if any, and any supplement thereto for the Securities (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, any Permitted Free Writing Prospectus and of
the Prospectus and any amendments or supplements thereto and any costs associated with electronic
delivery of any of the foregoing by the Underwriters to investors, (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 and (ix) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
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 contained in Section 1 hereof or in certificates of any officer of the Company or any of
its subsidiaries 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:
16
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 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.
(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.
17
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 of the chief financial or chief accounting
officer of the Company 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
LLP, counsel for the Company, together with the favorable opinion of Xxxxx X. XxXxxx, Vice
President, General Counsel and Corporate Secretary of the Company, 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(g) 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.
SECTION 6. Indemnification.
18
(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 430B
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, any Issuer Free Writing 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 Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), 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;
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 the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule 430B Information
or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
19
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 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.
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 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 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.
20
The relative benefits received by the Company 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) received by the Company 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 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.
The Company 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 and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company 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 or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company and (ii) delivery of and payment for
the Securities.
21
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, 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
(exclusive of any amendment or supplement thereto subsequent to the date of this Agreement) or the
General Disclosure Package, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and its 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.
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:
(a) 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
(b) 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 Company 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.
22
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 Company to sell the relevant
Option Securities, as the case may be, either the Representatives or the Company 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,
immediately upon 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 of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax structure”
includes any fact that may be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
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 1
Houston Center, 0000 XxXxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, attention of Xxxxx Xxxx;
notices to the Company shall be directed to them at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000-0000, attention of Xxxxx X. Xxxxxx.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be binding upon
the Underwriters and the Company 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 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
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.
23
SECTION 17. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
24
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 and the Company in accordance with its
terms.
Very truly yours, | ||||||
XXXXXXX PETROLEUM CORPORATION | ||||||
By | /s/ Xxxxx X. Xxxxxx | |||||
Title: | Chairman, President and | |||||
Chief Executive Officer |
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
KEYBANC CAPITAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
KEYBANC CAPITAL MARKETS INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
X.X. XXXXXXX & SONS, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX | ||||
INCORPORATED | ||||
By:
|
/s/ | |||
Authorized Signatory | ||||
By: X.X. XXXXXX SECURITIES INC. | ||||
By:
|
/s/ | |||
Authorized Signatory |
For themselves and as Representatives of each of the other Underwriters named in Schedule A
hereto.
SCHEDULE A
Number of | ||||
Initial | ||||
Name of Underwriter | Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
1,650,000 | |||
X.X. Xxxxxx Securities Inc. |
1,100,000 | |||
Xxxxxx Brothers Inc. |
500,000 | |||
Wachovia Capital Markets, LLC |
500,000 | |||
Banc of America Securities LLC |
400,000 | |||
KeyBanc Capital Markets Inc. |
300,000 | |||
Xxxxxxx Xxxxx & Associates, Inc. |
300,000 | |||
X.X. Xxxxxxx & Sons, Inc. |
250,000 | |||
Total |
5,000,000 | |||
Sch A-1
SCHEDULE B
XXXXXXX PETROLEUM CORPORATION
5,000,000 Shares of Common Stock
(Par Value $.001 Per Share)
XXXXXXX PETROLEUM CORPORATION
5,000,000 Shares of Common Stock
(Par Value $.001 Per Share)
1. The public offering price per share for the Securities, determined as provided in
Section 2, shall be $40.50.
2. The purchase price per share for the Securities to be sold by the Company and to be
paid by the several Underwriters shall be $38.88, being an amount equal to the initial
public offering price set forth above less $1.62 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
NONE
Sch C-1
SCHEDULE D
1. | all directors of Xxxxxxx Petroleum Corporation, and | |
2. | all officers of Xxxxxxx Petroleum Corporation required to file reports with the SEC pursuant to Section 16 of the 1934 Act. |
Sch D-1
SCHEDULE E
The public offering price per share for the Securities shall be $40.50.
Sch E-1
Exhibit A
FORM OF OPINION OF XXXXX & LARDNER LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
A-1
Exhibit B
FORM OF OPINION OF XXXXX X. XXXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
B-1
Exhibit C
FORM OF RESERVE LETTER
TO BE DELIVERED PURSUANT TO
SECTION 5(i)
TO BE DELIVERED PURSUANT TO
SECTION 5(i)
C-1