RANGE RESOURCES CORPORATION Underwriting Agreement
EXHIBIT 1.1
$100,000,000
RANGE RESOURCES CORPORATION
7.50% Senior Subordinated Notes due 2016
Underwriting Agreement
August 9, 2006
X.X. Xxxxxx Securities Inc.
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Range Resources Corporation, a Delaware corporation (the “Company”), proposes to issue and
sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are
acting as representative (the “Representative”), $100,000,000 principal amount of its 7.50% Senior
Subordinated Notes due 2016 (the “Securities”). The Securities will be issued pursuant to the
First Supplemental Indenture dated as of May 23, 2006 (the “Indenture”) between the Company and
X.X. Xxxxxx Trust Company, National Association, as trustee (the “Trustee”).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), an automatic
shelf registration statement on Form S-3 (File No. 333-134157), including a prospectus, relating to
the Securities. Such registration statement, as amended on May 17, 2006 and August 9, 2006,
including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities
Act to be part of the registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means the base prospectus included in such registration statement (and any
amendments thereto), the prospectus supplement filed with the Commission pursuant to Rule 424(b)(5)
under the Securities Act on August 9, 2006, and the prospectus included in the Registration
Statement at the time of its
effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities. If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement
to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of
such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”,
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively the “Time of Sale Information”): a
Preliminary Prospectus dated August 9, 2006, and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex C hereto.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue
and sell the Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the other terms and conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company the respective principal amount of Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to 98.00% of the principal amount thereof
plus accrued interest, if any, from May 23, 2006 to the Closing Date (as defined below). The
Company will not be obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
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(c) Payment for and delivery of the Securities will be made at the offices of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on
August 14, 2006, or at such other time or place on the same or such other date, not later than the
fifth business day thereafter, as the Representative and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representative against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Preliminary Prospectus.
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(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in such Time of Sale Information. No
statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy
the Securities (each such communication by the Company or its agents and representatives (other
than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex C hereto
and other written communications approved in writing in advance by the Representative. Each such
Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been
filed in accordance with the Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such
Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the Commission;
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as of the applicable effective date of the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material respects with the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will
not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes
no representation and warranty with respect to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when they were filed with the
Commission, conformed in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) Financial Statements. The audited financial statements of the Company included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus, together with the related notes and schedules, comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as applicable, and present
fairly in all material respects the consolidated financial position of the Company and its
Subsidiaries (as hereinafter defined) as of the dates indicated and the consolidated results of
operations and cash flows of the Company and its Subsidiaries for the periods specified and have
been prepared in compliance in all material respects with the requirements of the Exchange Act and
in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis
during the periods involved and the supporting schedules included or incorporated by reference in
the Registration Statement present fairly the information
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required to be stated therein. The other financial and accounting data, including the unaudited
financial statements, included or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, have been derived from the accounting records of the
Company and its subsidiaries and present fairly the information shown therein, in all material
respects.
(g) No Material Adverse Change. Subsequent to the respective dates as of which information is
given or incorporated by reference in the Registration Statement, the Time of Sale Information and
the Prospectus, and except as may be otherwise stated or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, there has not been (A) any
material and unfavorable change, financial or otherwise, in the business, properties, prospects,
regulatory environment, results of operations or condition (financial or otherwise) of the Company
and its Subsidiaries, taken as a whole, (B) any transaction entered into by the Company or any of
its Subsidiaries, which is material to the Company and its Subsidiaries, taken as a whole, or (C)
any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of
its Subsidiaries which is material to the Company and its Subsidiaries, taken as a whole.
(h) Organization and Good Standing of the Company. The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its properties and conduct its
business in all material respects as described in the Registration Statement, the Time of Sale
Information and the Prospectus. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except where the failure to
be so qualified and in good standing would not, individually or in the aggregate, have a material
adverse effect on the operations, business, prospects, properties, financial condition or results
of operation of the Company and its Subsidiaries taken as a whole (a “Material Adverse Effect”).
(i) Organization and Good Standing of Significant Subsidiaries. Range Energy I, Inc., Range
HoldCo, Inc., Range Production Company, Range Energy Ventures Corporation, Range Production I,
L.P., PMOG Holdings, Inc., Range Operating New Mexico, Inc., Great Lakes Energy Partners, L.L.C.,
Range Operating Texas, LLC, Pine Mountain Oil & Gas Inc., Pine Mountain Acquisition, Inc., Xxxxxx
Energy GP, LLC, Xxxxxx Energy LP, LLC, Xxxxxx Oil Properties, LP, Xxxxxx Energy Management GP, LLC
and Xxxxxx Energy, Ltd. (the “Subsidiaries”), include each subsidiary of the Company that
constitutes a “significant subsidiary” of the Company as defined by Rule 1-02 of Regulation S-X; no
other subsidiaries of the Company would, individually or in the aggregate, constitute such a
significant subsidiary; each Subsidiary has been duly organized and is validly existing as a
corporation, limited liability company or limited partnership and (in those jurisdictions in which
good standing is a relevant concept for such type of entity) is in good standing under the laws of
the jurisdiction of its organization, with full corporate, limited liability company or
partnership power and authority to own, lease and operate its properties and to conduct its
business in all
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material respects as described in the Registration Statement, the Time of Sale Information and the
Prospectus; each Subsidiary is duly qualified to do business as a foreign corporation, limited
liability company or limited partnership and (in those jurisdictions in which good standing is a
relevant concept for such type of entity) is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business requires such qualification,
except where the failure to be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares of capital stock of each
of the Subsidiaries that is a corporation have been duly and validly authorized and issued, are
fully paid and non-assessable, the outstanding membership interest of Great Lakes Energy Partners,
L.L.C., has been issued in accordance with the organizational documents of Great Lakes Energy
Partners, L.L.C., the outstanding partnership interest of Range Production I, L.P., has been issued
in accordance with the terms of the limited partnership agreement of Range Production I, L.P., the
outstanding membership interest of Range Operating Texas, LLC, has been issued in accordance with
the organizational documents of Range Operating Texas, LLC, the outstanding membership interest of
Xxxxxx Energy GP, LLC, has been issued in accordance with the organizational documents of Xxxxxx
Energy GP, LLC, the outstanding membership interest of Xxxxxx Energy LP, LLC, has been issued in
accordance with the organizational documents of Xxxxxx Energy LP, LLC, the outstanding partnership
interest of Xxxxxx Oil Properties, LP, has been issued in accordance with the terms of the limited
partnership agreement of Xxxxxx Oil Properties, LP, the outstanding membership interest of Xxxxxx
Energy Management GP, LLC, has been issued in accordance with the organizational documents of
Xxxxxx Energy Management GP, LLC, the outstanding partnership interest of Xxxxxx Energy, Ltd., has
been issued in accordance with the terms of the limited partnership agreement of Xxxxxx Energy,
Ltd. and, except as described in the Registration Statement, the Time of Sale Information and the
Prospectus, are owned, directly or indirectly, by the Company, subject to no security interest,
other encumbrance or adverse claims.
(j) Capitalization. The Company had an authorized and outstanding capitalization as set forth
under the column heading entitled “Actual” in the section of the Registration Statement, the Time
of Sale Information and the Prospectus entitled “Capitalization” and, as adjusted to give effect to
the offering of the Securities and the application of the net proceeds therefrom as described in
the “Use of Proceeds” section of the Registration Statement, the Time of Sale Information and the
Prospectus; assuming the accuracy of the transaction expenses and the pricing terms for the
offering of the Securities used in the section of the Registration Statement, the Time of Sale
Information and the Prospectus entitled “Capitalization,” the Company would, as of June 30, 2006,
have had an authorized and outstanding capitalization as set forth under the column heading
entitled “As Adjusted” in the section of the Registration Statement, the Time of Sale Information
and the Prospectus entitled “Capitalization”; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully paid and
non-assessable.
(k) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the
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“Transaction Documents”) and to perform its obligations hereunder and thereunder; and all action
required to be taken for the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated thereby has been duly
and validly taken.
(l) The Indenture. The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the Company, enforceable in
accordance with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’
rights generally and general principles of equity; the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
(m) The Securities. The Securities have been duly authorized by the Company and when duly
executed and delivered by the Company and duly authenticated by the Trustee in accordance with the
terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the
terms hereof, will constitute legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’
rights generally and general principles of equity, and will be entitled to the benefits of the
Indenture.
(n) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and when executed and delivered by the other parties thereto will be a legal, valid
and binding agreement of the Company, enforceable in accordance with its terms, except (i) as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and general principles of equity and (ii) rights
to indemnity and contribution may be limited by applicable law, rule, regulation or interpretation
of the Commission.
(o) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus.
(p) No Violation, Default or Conflicts. Neither the Company nor any of its Subsidiaries is in
breach or violation of, or in default under (nor has any event occurred which with notice, lapse of
time or both would result in any breach or violation of, or constitute a default), (i) its
respective charter or bylaws or (ii) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any material license, material lease, material
contract or other material agreement or material instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of its Subsidiaries; and the execution, delivery
and performance of the Transaction Documents and consummation of the transactions contemplated
hereby and thereby, including the issuance of the Securities, will not
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conflict with, result in any breach or violation of or constitute a default under (nor constitute
any event which with notice, lapse of time or both would result in any breach or violation of or
constitute a default under), (x) the charter or bylaws of the Company or any of the Subsidiaries or
(y) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, material contract or other material agreement or material
instrument to which the Company or any of the Subsidiaries is a party or by which any of them or
any of their properties may be bound or affected, or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to the Company or any of the
Subsidiaries, which conflicts, breaches, violations or defaults listed in clause (y) of this
subparagraph (p) would, individually or in the aggregate, have a Material Adverse Effect.
(q) No Consents Required. No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board, body, authority or
agency, or of or with the rules of the New York Stock Exchange, or approval of the stockholders of
the Company, is required in connection with the issuance and sale by the Company of the Securities
or the consummation of the transactions as contemplated hereby and by the Transaction Documents
other than as may be required under the securities or blue sky laws of the various jurisdictions in
which the Securities are being offered by the Underwriters.
(r) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the knowledge of the Company after due inquiry,
contemplated to which the Company or any of its Subsidiaries or any of their respective directors
or officers is or would be a party or of which any of their respective properties is or would be
subject, at law or in equity, or before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, which would result in a judgment, decree
or order either (A) having a Material Adverse Effect or (B) preventing the consummation of the
transactions contemplated hereby and by the Indenture and the Securities, (ii) there are no current
or pending legal, governmental or regulatory actions, suits or proceedings that are required under
the Securities Act to be described in the Registration Statement that are not so described in the
Registration Statement, the Time of Sale Information and the Prospectus and (iii) there are no
statutes, regulations or contracts or other documents that are required under the Securities Act to
be filed as exhibits to the Registration Statement or described in the Registration Statement or
the Prospectus that are not so filed as exhibits to the Registration Statement or described in the
Registration Statement, the Time of Sale Information or the Prospectus.
(s) Independent Accountants. Ernst & Young LLP and PricewaterhouseCoopers LLP, whose reports
on the consolidated financial statements of the Company and Xxxxxx Energy, Inc., respectively, are
included or incorporated by reference in the Registration Statement, the Time of Sale Information
and the Prospectus, were at the time of such report independent public accountants with respect to
the Company and Xxxxxx Energy, Inc., respectively, as required by the
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Securities Act and the Exchange Act, and the applicable published rules and regulations thereunder.
(t) Title to Real and Personal Property. The Company and each of the Subsidiaries has good
and marketable title to all property (real and personal) described or incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus as being owned by each
of them, free and clear of all liens, claims, security interests or other encumbrances, except as
such do not materially interfere with the use of such property taken as a whole as described in the
Registration Statement, the Time of Sale Information and the Prospectus; all the real property
described in the Registration Statement, the Time of Sale Information and the Prospectus as being
held under lease by the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases with such exceptions as do not materially interfere with the use of such
property taken as a whole as described in the Registration Statement, the Time of Sale Information
and the Prospectus.
(u) Title to Intellectual Property. Each of the Company and its Subsidiaries own, or have
obtained valid and enforceable licenses for, or other adequate rights to use, all material
inventions, patent applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information described or incorporated
by reference in the Registration Statement, the Time of Sale Information and the Prospectus as
being owned or licensed by them or which are necessary for the conduct of their respective
businesses, except where the failure to own, license or have such rights would not, individually or
in the aggregate, have a Material Adverse Effect (collectively, “Intellectual Property”); and the
conduct of their respective businesses will not conflict in any material respect with, and neither
of the Company nor any of its Subsidiaries has received notice of any claim or conflict with, any
rights of others.
(v) Investment Company Act. Neither the Company nor any of the Subsidiaries is, nor after
giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Registration Statement, the Time of Sale Information and the Prospectus
will any of them be, required to register as an “investment company” under the Investment Company
Act of 1940, as amended.
(w) Licenses and Permits. Each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals (collectively, “Consents”) and has made all
necessary filings required under any federal, state, local or foreign law, regulation or rule
(“Filings”) and has obtained all necessary Consents from other persons, in order to conduct their
respective businesses, except where the failure to have any such Consent or to have made any such
Filing would not have a Material Adverse Effect; neither the Company nor any of its Subsidiaries is
in violation of, or in default under, any such Consent which violation or default would have a
Material Adverse Effect.
(x) No Labor Disputes. Neither the Company nor its Subsidiaries are involved in any labor
dispute with their respective employees nor, to the knowledge of the
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Company, is any such dispute threatened except, in each case, for disputes which would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(y) Compliance With Environmental Laws. The Company and its Subsidiaries and their
properties, assets and operations are in material compliance with, and hold all material permits,
authorizations and approvals required under, Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are no past or present
events, conditions, circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the Company or its
Subsidiaries under Environmental Laws except as would not, individually or in the aggregate, have a
Material Adverse Effect; except as would not, individually or in the aggregate, have a Material
Adverse Effect, the Company and each of the Subsidiaries (i) is not the subject of any
investigation, (ii) has not received any notice or claim, (iii) is not a party to or affected by
any pending or threatened action, suit or proceeding, (iv) is not bound by any judgment, decree or
order or (v) has not entered into any agreement, in each case relating to any alleged violation of
any Environmental Law or any actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below) (as used herein, “Environmental Law” means
any federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened release of Hazardous
Materials, and “Hazardous Materials” means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law.
(z) Disclosure Controls. The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company’s Chief Executive
Officer and its Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they were established; the
Company’s auditors and the Audit Committee of the Board of Directors have been advised of: (i) any
significant deficiencies in the design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any
fraud, whether or not material, that involves management or other employees who have a role in the
Company’s internal controls; any material weaknesses in internal controls have been identified for
the Company’s auditors; and since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal controls or in other
11
factors that could significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
(aa) Accounting Controls. The Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(bb) Insurance. The Company and its Subsidiaries maintain insurance of the types and in the
amounts reasonably believed to be adequate for their business and consistent in all material
respects with insurance coverage maintained by similar companies in similar businesses, all of
which insurance is in full force and effect.
(cc) No Registration Rights. Except as described in the Registration Statement, the Time of
Sale Information and the Prospectus, no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale of the Securities, whether
as a result of the sale of the Securities as contemplated hereby or otherwise.
(dd) No Stabilization. Neither the Company nor any Affiliate has taken, directly or
indirectly, any action designed, or which has constituted or might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale of the Securities.
(ee) Reserves. Other than as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, the proved reserves for crude oil and natural gas for each of the
periods presented in the Registration Statement, the Time of Sale Information and the Prospectus
were prepared in accordance with the Statement of Financial Accounting Standards No. 69 and Rule
4-10 of Regulation S-X.
(ff) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company and its
Subsidiaries or any of the officers and directors of the Company or any of its Subsidiaries, in
their capacities as such, to comply in all material respects with the provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations in connection therewith, including without
limitation Section 402 related to loans and Sections 302 and 906 related to certifications.
(gg) Status under the Securities Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering
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of the Securities. The Company has paid the registration fee for this offering pursuant to Rule
456(b)(1) under the Securities Act or will pay such fees within the time period required by such
rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; and will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale of the Securities;
and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to
the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New
York City time, on the business day next succeeding the date of this Agreement in such quantities
as the Representative may reasonably request. The Company will pay the registration fees for this
offering within the time period required by Rule 456(b)(i) under the Securities Act prior to the
Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representative,
two signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto filed prior to the later of (x) Closing or (y) the
expiration of the Prospectus Delivery Period or otherwise relating to the Securities, in each case
including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period
(as defined below), as many copies of the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as
the Representative may reasonably request. As used herein, the term “Prospectus Delivery Period”
means such period of time after the first date of the public offering of the Securities as in the
opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law
to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Prior to the later of (i)
Closing or (ii) the expiration of the Prospectus Delivery Period, before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, whether before
or after the time that the Registration Statement becomes effective the Company will furnish to the
Representative and
13
counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize, approve, refer to or file any such
Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the
Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement filed prior to
the later of (x) Closing or (y) the expiration of the Prospectus Delivery Period or otherwise
relating to the Securities has been filed or becomes effective; (ii) when any supplement to the
Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus relating to the
Securities has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information relating to the Registration Statement or any document
incorporated therein as of the later of (x) Closing or (y) the expiration of the Prospectus
Delivery Period; (iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing
Prospectus as then amended or supplemented would include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances existing when the Prospectus, the Time of
Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; and (vi) of the receipt by the Company of any notice of objection of the Commission to
the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any
such order is issued, will use its reasonable best efforts to obtain as soon as possible the
withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly
notify the
14
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the Representative may designate,
such amendments or supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply
with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition
shall exist as a result of which the Time of Sale Information as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances, not misleading or (ii) it
is necessary to amend or supplement the Time of Sale Information to comply with law, the Company
will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c)
above, file with the Commission (to the extent required) and furnish to the Underwriters and to
such dealers as the Representative may designate, such amendments or supplements to the Time of
Sale Information as may be necessary so that the statements in the Time of Sale Information as so
amended or supplemented will not, in the light of the circumstances, be misleading or so that the
Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. During the period from the date hereof through and including the date that
is 90 days after the date hereof, the Company will not, without the prior written consent of the
Representative, offer, sell, contract to sell or otherwise dispose of any debt securities issued or
guaranteed by the Company and having a tenor of more than one year.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of Proceeds”.
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(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(k) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex C or prepared pursuant to Section 3(c) or
Section 4(c) above, or (iii) any free writing prospectus prepared by such underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in clauses (i)
or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially in the form of Annex D hereto without the consent
of the Company; provided further that any Underwriter using such term sheet shall notify the
Company, and provide a copy of such term sheet to the Company, prior to, or substantially
concurrently with, the first use of such term sheet.
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies of each
free writing prospectus used or referred to by it, in accordance with Rule 433 under the Securities
Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering of the Securities (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery Period).
16
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of a Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Between the time of execution of this Agreement and the Closing Date, there
shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any watch, review or possible change that does not indicate an
affirmation or improvement in the rating accorded any securities of or guaranteed by the Company or
any Subsidiary by any “nationally recognized statistical rating organization,” as that term is
defined in Rule 436(g)(2) under the Securities Act.
(d) No Material Adverse Change. Between the time of execution of this Agreement and the
Closing Date, (i) no material adverse change or development involving a prospective material
adverse change in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole shall occur or become known and
(ii) no transaction which is material and unfavorable to the Company (other than as disclosed in
the Registration Statement, the Time of Sale Information and the Prospectus) shall have been
entered into by the Company or any of its Subsidiaries, the effect of which, in any case under this
Section 6(d), is so material and adverse as to make it impracticable to proceed with the offering,
sale or delivery of the Securities being delivered at the time of purchase on the terms and in the
manner contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representative shall have received on and as of the Closing
Date a certificate of its Chief Executive Officer and its Chief Financial Officer in the form
attached as Annex B hereto.
17
(f) Comfort Letters from Ernst & Young LLP. On the date of this Agreement and on the Closing
Date, Ernst & Young LLP shall have furnished to the Representative, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representative, containing statements and information
of the type customarily included in accountants’ “comfort letters” to underwriters with respect to
the financial statements and certain financial information contained or incorporated by reference
in the Registration Statement, the Time of Sale Information and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more than three
business days prior to the Closing Date.
(g) Comfort Letter from PricewaterhouseCoopers LLP. On the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representative, at the request of the
Company, a letter, dated the date of delivery thereof and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representative, containing statements and information
of the type customarily included in accountants’ “comfort letters” to underwriters as the
Representative may request and PricewaterhouseCoopers LLP are willing to perform and report upon
with respect to the audited financial statements of Xxxxxx Energy, Inc. for the fiscal year ended
December 31, 2005 and the unaudited financial statements for the three months ended March 31, 2006,
filed on Form 8-K/A with the Commission by the Company on August 9, 2006 and incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus.
(h) Opinion of Counsel for the Company. Xxxxxx & Xxxxxx LLP, counsel for the Company, shall
have furnished to the Representative, at the request of the Company, their written opinion, dated
the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representative, to the effect set forth in Annex A hereto.
(i) Opinion of Counsel for the Underwriters. The Representative shall have received on and as
of the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, with respect
to such matters as the Representative may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to pass upon such
matters.
(j) Qualified Independent Underwriter Letter. Prior to the Closing Date, the Company shall
have received an executed letter from Credit Suisse Securities (USA) LLC which sets forth a
recommendation for the yield on the Notes (the “QIU Letter”) and the Company shall have delivered a
copy of the QIU Letter to the Representative.
(k) Additional Documents. On or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the Representative may reasonably
request.
18
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only
such information consists of the following: the last two paragraphs of the section entitled
“Underwriting” in the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to
19
either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the
person against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 7 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than under this
Section 7. If any such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of
the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person
in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding,
as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary, or (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by X.X. Xxxxxx Securities Inc. and any such separate firm for the Company, its directors, its
officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does
20
not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant
21
to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date there shall have occurred (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the New
York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either
federal or New York State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or escalation of
hostilities or acts of terrorism involving the United States or a declaration by the United States
of a national emergency or war; or (v) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such changes. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10,
purchases Securities that a defaulting Underwriter agreed but failed to purchase.
22
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriter’s pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of such jurisdictions
as the Representative may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees
charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such parties); and
(viii) all expenses
23
incurred by the Company in connection with any “road show” presentation to
potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 9 (other than pursuant to clause
(v) of Section 9 if the Company and the Underwriters subsequently enter into another agreement for
the Underwriters to underwrite the same or substantially similar securities of the Company), (ii)
the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii)
the Underwriters decline to purchase the Securities for any reason permitted under this Agreement,
the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses
(including the reasonable fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf of the Underwriters,
and any such action taken by X.X. Xxxxxx Securities Inc. shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention:
Xx. Xxxxxxxx Xxxxxx,
24
Notices to the Company shall be given to it at the offices of the Company at
000 Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000 (fax: (000) 000-0000); Attention: Xxxxxx X. Xxxxxx.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
25
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, | ||||
RANGE RESOURCES CORPORATION | ||||
By | /s/ Xxxxxx X. Xxxxxx | |||
Title: Senior Vice President |
Accepted: August 9 2006
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. | ||||||
By |
/s/ — | |||||
Authorized Signatory |
Schedule 1
Underwriter | Principal Amount | |||
X.X. Xxxxxx Securities Inc. |
$ | 42,000,000 | ||
Credit Suisse Securities (USA) LLC |
$ | 17,000,000 | ||
Banc of America Securities LLC |
$ | 9,000,000 | ||
BMO Capital Markets Corp. |
$ | 9,000,000 | ||
Wachovia Capital Markets, LLC |
$ | 9,000,000 | ||
Calyon Securities (USA) Inc. |
$ | 2,000,000 | ||
Comerica Securities, Inc. |
$ | 2,000,000 | ||
Fortis Securities LLC |
$ | 2,000,000 | ||
Capital One Southcoast, Inc. |
$ | 2,000,000 | ||
KeyBanc Capital Markets, a division of
McDonald Investments, Inc. |
$ | 2,000,000 | ||
Scotia Capital (USA) Inc. |
$ | 2,000,000 | ||
Natexis Bleichroeder Inc. |
$ | 2,000,000 | ||
Total |
$ | 100,000,000 |
Annex A
[Form of Opinion of Counsel for the Company]
(a) The Registration Statement is an “automatic shelf registration statement” as defined under
Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424 under the
Securities Act specified in such opinion on the date specified therein; and, to the best knowledge
of such counsel, no order suspending the effectiveness of the Registration Statement has been
issued, no notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or in connection with the offering is pending or threatened by
the Commission.
(b) The Registration Statement, the Preliminary Prospectus and the Prospectus (other than (a)
the financial statements and related schedules thereto, including the notes thereto and the
independent registered public accounting firm’s report thereon and (b) the other financial and
statistical data that is included or incorporated by reference therein and (c) the oil and gas
reserve reports and related reserve information contained or incorporated by reference therein, as
to which such counsel need express no opinion) appear on their face to be appropriately responsive
in all material respects to the requirements of the Securities Act; each Issuer Free Writing
Prospectus included in the Time of Sale Information contains the legend required by Rule 433 of the
Securities Act and has been filed with the Commission to the extent, and within the time period,
required pursuant to Rule 433 of the Securities Act; and the Indenture complies as to form in all
material respects with the requirements of the Trust Indenture Act.
(c) The Company is validly existing and in good standing as a corporation under the laws of
the State of Delaware with all requisite corporate power and authority to own its properties and
conduct its business in all material respects as described in the Registration Statement, the Time
of Sale Information and the Prospectus.
(d) Each of the Subsidiaries (other than Range Production I, L.P., Pine Mountain Oil & Gas
Inc., Xxxxxx Energy Management GP, LLC and Xxxxxx Energy, Ltd.) is validly existing and in good
standing under the laws of the State of Delaware; each of Range Production I, L.P., Xxxxxx Energy
Management GP, LLC and Xxxxxx Energy, Ltd. is validly existing under the laws of the State of Texas
and Xxxxxx Energy Management GP, LLC is in good standing under the laws of the State of Texas; Pine
Mountain Oil & Gas Inc. is validly existing [and in good standing] [Note, to be deleted if good
standing is not relevant in Virginia] under the laws of the State of Virginia; each of the
Subsidiaries has all requisite corporate, limited liability company or partnership power and
authority to own its respective
properties and to conduct its respective business, in all
A-1
material respects as described in the
Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Company and each of the Subsidiaries listed on Schedule 1 of such opinion,
other than Xxxxxx Energy, Ltd. and Range Production I, L.P., are (i) duly qualified or licensed to
do business as a foreign corporation, foreign limited partnership or limited liability company in
each jurisdiction listed across from each such entity’s name on Schedule 1 of such opinion
and (ii) in good standing in each jurisdiction listed across from each such entity’s name on
Schedule 1 of such opinion, [other than those jurisdictions in which good standing is not a
relevant concept for such entity – such counsel may separately specify on Schedule 1 which
states the opinion in clause (ii) speaks to and, if verbal or written confirmation of good standing
is not available from New York by closing, may omit New York from such opinion.].
(f) The documents incorporated by reference in the Time of Sale Information and the Prospectus
or any further amendment or supplement thereto made by the Company prior to the Closing Date
(except for (a) the financial statements and related schedules thereto, including the notes thereto
and the independent registered public accounting firm’s report thereon, (b) the other financial and
statistical data that is included or incorporated by reference therein and (c) the oil and gas
reserve reports and related reserve information contained or incorporated by reference therein, as
to which we express no opinion), when they were filed with the Commission, appear on their face to
be appropriately responsive in all material respects with the requirements of the Securities Act or
the Exchange Act and the rules and regulations of the Commission thereunder.
(g) The execution, delivery and performance of the Underwriting Agreement, the Indenture and
the Securities by the Company and the Subsidiaries, as applicable, and the consummation by the
Company of the transactions contemplated thereby and the issuance of the Securities by the Company
do not conflict with, or result in any breach of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach or default under) (A) any
provisions of the Charter or Bylaws of the Company, (B) any Applicable Contract, or (C) assuming
compliance with all applicable state securities laws and assuming the accuracy of the
representations and warranties of the Underwriters contained in the Underwriting Agreement, any
federal or Texas or Delaware state law, regulation or rule or, to our knowledge and without having
investigated governmental records or court dockets, any decree, judgment or order applicable to the
Company or any of the Subsidiaries, except, in the case of clause (B) and (C), for such conflicts,
breaches or defaults that would not, individually or in the aggregate, result in a Material Adverse
Effect and, in the case of clause (C), such counsel need express no opinion with respect to the
anti-fraud provisions of federal securities laws or with respect to state securities laws or Blue
Sky laws.
(h) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
A-2
(i) The Indenture has been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a legal,
valid and binding agreement of the Company, enforceable against the Company and the Subsidiaries in
accordance with its terms except as the enforceability thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, (B)
general principles of equity, whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefore may be brought and (C)
the rights to indemnity and contribution may be limited by applicable law, rule, regulation or
judicial determination or interpretation of the Commission.
(j) The Guarantees, as defined in the Indenture, have been duly authorized, executed and
delivered by the Subsidiary Guarantors and, assuming the due authorization, execution and delivery
of the Securities by the Trustee and upon payment for and delivery of the Notes in accordance with
the Underwriting Agreement, each Guarantee will constitute a legal, valid and binding agreement of
each Subsidiary Guarantor, enforceable against each Subsidiary Guarantor in accordance with its
terms except as the enforceability thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally, (B) general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding therefore may be brought and (C) the rights
to indemnity and contribution may be limited by applicable law, rule, regulation or judicial
determination or interpretation of the Commission.
(k) The Securities have been duly authorized by the Company, and when executed and duly
authenticated in accordance with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, (A) will constitute legal,
valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally, (ii) general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding therefore may be brought, and (iii) the
rights to indemnity and contribution may be limited by applicable law, rule, regulation or judicial
determination or interpretation of the Commission, and (B) will be entitled to the benefits of the
Indenture.
(l) No approval, authorization, consent or order of or filing with any national, state or
local governmental or regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale by the Company of the Securities as contemplated in the
Underwriting Agreement, other than such as have been obtained under the Securities Act and the
Trust Indenture Act and as may be required under the securities or blue sky laws of the various
jurisdictions in which the Securities are being resold by the Underwriters.
A-3
(m) The statements set forth in the Preliminary Prospectus under the caption “Description of
notes” (when taken together with the terms of the Securities set forth in the Time of Sale
Information) and in the Preliminary Prospectus under the caption “Description of debt securities,”
insofar as they purport to constitute a summary of the terms of the Securities, are accurate
summaries in all material respects; and the statements set forth in the Time of Sale Information
and the Prospectus under the caption “Important U.S. federal income tax considerations,” insofar as
they purport to constitute summaries of matters of law or regulation or legal conclusions, are
accurate summaries in all material respects.
(n) The Company is not, and after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Registration Statement, the Time of
Sale Information and the Prospectus will not be, required to register as an “investment company” as
defined in the Investment Company Act of 1940, as amended.
(o) Based upon our participation in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company and representatives
of the Underwriters at which the contents of the Registration Statement, the Time of Sale
Information and the Prospectus and any amendment and supplement thereto and related matters were
discussed and without any additional inquiry or due diligence (except as necessary to express the
opinions set forth above), although we have not conducted any independent investigations with
regard to the information in the Registration Statement, the Time of Sale Information and the
Prospectus and are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Time of
Sale Information and the Prospectus (except to the extent stated in paragraph (m) above), no facts
have come to our attention which lead us to believe that the Registration Statement, at the time of
its effective date (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C
to be part of the Registration Statement at the time of effectiveness), contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, that the Time of Sale Information, at the
Time of Sale (which such counsel may assume to be the date of the Underwriting Agreement) contained
any untrue statement of a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading or
that the Prospectus or any amendment or supplement thereto as of its date and the Closing Date
contains any untrue statement of a material fact or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading (except for (a) the financial statements and related schedules thereto, including the
notes thereto, and the independent registered public accounting firm’s report thereon, (b) the
other financial and statistical data that is included or incorporated by reference therein and (c)
the oil and gas reserve reports and related reserve information contained or incorporated by
reference therein, as to which we express no opinion).
A-4
SCHEDULE 1
• | Range Resources Corporation – Texas, Oklahoma | |
• | Range HoldCo, Inc. – New York, Oklahoma, Pennsylvania, Ohio | |
• | Range Production Company – Louisiana, Mississippi, New Mexico, Oklahoma, Texas | |
• | Range Energy Ventures Corporation – Louisiana, Mississippi, Texas | |
• | Great Lakes Energy Partners, L.L.C. – Ohio, Pennsylvania | |
• | Range Operating New Mexico, Inc. – New Mexico | |
• | Range Production I, L.P. – Louisiana, Mississippi | |
• | Range Operating Texas, LLC – Texas | |
• | Pine Mountain Oil & Gas Inc – West Virginia | |
• | Xxxxxx Energy GP, LLC – Texas | |
• | Xxxxxx Energy, Ltd. – Mississippi, Oklahoma |
A-5
Annex B
OFFICERS’ CERTIFICATE
1. | I have reviewed the Registration Statement, the Time of Sale Information and the Prospectus. | |
2. | The representations and warranties of the Company as set forth in the Underwriting Agreement are true and correct as of the time of purchase. | |
3. | The Company has performed all of its obligations under the Underwriting Agreement as are to be performed at or before the time of purchase. | |
4. | The condition set forth in Section 6(d) (No Material Adverse Change) of the Underwriting Agreement has been met. |
Annex C
a. Time of Sale Information
1. Term sheet containing the terms of the securities, substantially in the form of Annex D.
Annex D
Issuer:
|
Range Resources Corporation | |
Guarantors:
|
Range Energy I, Inc., Range HoldCo, Inc., Range Production Company, Range Energy Ventures Corporation, Range Production I, L.P., PMOG Holdings, Inc., Range Operating New Mexico, Inc., Great Lakes Energy Partners, L.L.C., Range Operating Texas, L.L.C., Pine Mountain Oil & Gas Inc., Pine Mountain Acquisition, Inc., Xxxxxx Energy GP, LLC, Xxxxxx Energy LP, LLC, Xxxxxx Oil Properties, LP, Xxxxxx Energy Management GP, LLC and Xxxxxx Energy, Ltd. | |
Security Description:
|
Senior Subordinated Notes | |
Distribution:
|
SEC Registered | |
Face:
|
$100,000,000 | |
Gross Proceeds:
|
$99,500,000 | |
Coupon:
|
7.500% | |
Maturity:
|
May 15, 2016 | |
Offering Price:
|
99.500% plus accrued interest from May 23, 2006 | |
Yield to Maturity:
|
7.570% | |
Spread to Treasury:
|
+262 bps | |
Benchmark:
|
UST 5.125% due 5/15/2016 | |
Ratings:
|
B2/B | |
Interest Pay Dates:
|
May 15 and November 15 | |
Beginning:
|
November 15, 2006 | |
Clawback:
|
Up to 35% at 107.5% | |
Until:
|
May 15, 2009 | |
Optional redemption:
|
Makewhole call @ T+50bps prior to May 15, 2011, then: |
On or after: | Price: | |||
May 15, 2011 |
103.750 | % | ||
May 15, 2012 |
102.500 | % | ||
May 15, 2013 |
101.250 | % | ||
May 15, 1014 and thereafter |
100.000 | % |
Change of control:
|
Put @ 101% of principal plus accrued interest | |
Trade Date:
|
August 9, 2006 | |
Settlement Date:
|
(T+3) | August 14, 2006 |
CUSIP:
|
00000XXX0 | |
ISIN:
|
US75281AAG40 | |
Sole Bookrunner:
|
JPMorgan | |
Lead Manager:
|
Credit Suisse | |
Co-Managers:
|
Banc of America Securities LLC | |
BMO Capital Markets | ||
Wachovia Securities | ||
Calyon Securities (USA) | ||
Comerica Securities | ||
Fortis Securities LLC | ||
Capital One Southcoast | ||
KeyBanc Capital Markets | ||
Scotia Capital | ||
Natexis Bleichroeder Inc. |
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling collect 0-000-000-0000.
Any disclaimer or other notice that may appear below is not applicable to this
communication and should be disregarded. Such disclaimer or notice was
automatically generated as a result of this communication being sent by
Bloomberg or another email system.
D-2