Exhibit 10.2
SUBSCRIPTION
AGREEMENT
Kodiak Oil & Gas Corp.
1625 Broadway, Suite 250
Denver, Colorado 80202
Gentlemen:
The undersigned (the “ Investor
”) hereby confirms its agreement with you as
follows:
1. This Subscription Agreement (this “
Agreement ”) is made as of the date set forth below
between Kodiak Oil & Gas Corp, a Yukon Territory
corporation (the “ Company ”), and the
Investor.
2. The Company has authorized the sale and issuance
to certain investors of up to an aggregate of 10,000,000 shares
(the “ Shares ”) of its Common Stock, no par
value (the “ Common Stock ”), subject to
adjustment by the Company’s Board of Directors, or a
committee thereof, for a purchase price of $0.75 per share (the
“ Purchase Price ”).
3. The offering and sale of the Shares (the “
Offering ”) are being made pursuant to (1) an
effective Registration Statement on Form S-3 (including the
Prospectus contained therein (the “ Base Prospectus
”), the “ Registration Statement ”) filed
by the Company with the Securities and Exchange Commission (the
“ Commission ”) on July 14, 2008,
(2) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under
the Securities Act of 1933, as amended), that have or will be filed
with the Commission and delivered to the Investor on or prior to
the date hereof, and (3) a Prospectus Supplement (the “
Prospectus Supplement ” and together with the Base
Prospectus, the “ Prospectus ”) containing only
certain supplemental information regarding the Shares and terms of
the Offering that will be filed with the Commission and delivered
to the Investor prior to the Closing (as defined in
Section 3.1 of Annex I hereto).
4. The Company and the Investor agree that the
Investor will purchase from the Company and the Company will issue
and sell to the Investor the Shares set forth below for the
aggregate purchase price set forth below. The Shares shall be
purchased pursuant to the Terms and Conditions for Purchase of
Shares attached hereto as Annex I and incorporated herein by
this reference as if fully set forth herein. The Investor
acknowledges that the Offering is not being underwritten by an
underwriter and that there is no minimum offering
amount.
5. The manner of settlement of the Shares purchased
by the Investor shall be as follows:
DELIVERY BY ELECTRONIC BOOK-ENTRY AT THE
DEPOSITORY TRUST COMPANY (“ DTC ”), REGISTERED
IN THE INVESTOR’S NAME AND ADDRESS AS SET FORTH BELOW, AND
RELEASED BY COMPUTERSHARE INVESTOR SERVICES INC (“
COMPUTERSHARE ”), THE COMPANY’S TRANSFER AGENT
(THE “ TRANSFER AGENT ”), TO THE INVESTOR AT THE
CLOSING (AS DEFINED IN SECTION 3.1 OF ANNEX I
HERETO).
NO LATER THAN ONE (1) BUSINESS DAY AFTER
THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY,
THE INVESTOR SHALL DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR
ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN (“ DWAC ”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS
WITH THE SHARES.
IMMEDIATELY UPON CLOSING THE INVESTOR SHALL
REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO
THE FOLLOWING ACCOUNT:
BANK OF THE WEST, N.A.
ABA Number: 121100782
Account Name: Kodiak Oil &
Gas Corp.
Account Number: 339001083
Ref: Kodiak Registered Direct
Offering
Attn: Alfredo Benavente
Tel: 303-260-7269
IT IS THE INVESTOR’S RESPONSIBILITY TO
(A) MAKE THE NECESSARY WIRE TRANSFER IN A TIMELY MANNER AND
(B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY MANNER.
IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR
THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A
TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT CLOSING TO
THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER .
6. The Investor represents that, except as set
forth below, (a) it has had no position, office or other
material relationship within the past three years with the Company
or persons known to it to be affiliates of the Company, (b) it
is not a NASD member or an Associated Person (as such term is
defined under the NASD Membership and Registration
Rules Section 1011) as of the Closing, and
(c) neither the Investor nor any group of Investors (as
identified in a public filing made with the Commission) of which
the Investor is a part in connection with the Offering of the
Shares, acquired, or obtained the right to acquire, 20% or more of
the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
(If no exceptions, write “none.” If
left blank, response will be deemed to be
“none.”)
7. The Investor represents that it has received (or
otherwise had made available to it by the filing by the Company of
an electronic version thereof with the Commission) the Base
Prospectus, dated July 14, 2008, which is a part of the
Company’s Registration Statement and the documents
incorporated by reference therein (collectively, the
“Disclosure Package”) prior to or in connection with
the receipt of this Agreement.
8. No offer by the Investor to buy Shares will be
accepted and no part of the Purchase Price will be delivered to the
Company until the Company has accepted such offer by countersigning
a copy of this Agreement, and any such offer may be withdrawn or
revoked by the Investor, without obligation or commitment of any
kind, at any time prior to the Company sending (orally, in writing,
or by electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or commitment of
any kind until this Agreement is accepted and countersigned by or
on behalf of the Company.
|
Number of Shares:
|
|
|
|
|
Purchase Price Per Share:
|
|
$
|
0.75
|
|
|
Aggregate Purchase Price:
|
|
$
|
|
|
Please confirm that the foregoing
correctly sets forth the agreement between us by signing in the
space provided below for that purpose.
2
|
|
|
Dated as of:
May [ ],
2009
|
|
|
|
|
INVESTOR
|
|
|
By:
|
|
|
|
|
Print Name:
|
|
|
|
|
Title:
|
|
|
|
|
Address:
|
|
|
|
Agreed and Accepted
this [ ] day of May,
2009:
|
|
|
KODIAK OIL
& GAS CORP
|
|
|
By:
|
|
|
|
|
Name: Lynn A. Peterson
|
|
|
|
|
Title: President and CEO
|
|
|
|
3
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE
OF SHARES
|
1.
|
Authorization and Sale of the
Shares
|
Subject to the terms and conditions
of this Agreement, the Company has authorized the sale of the
Shares.
|
2.
|
Agreement to Sell and Purchase the
Shares.
|
2.1 At the Closing, the Company will sell to the
Investor, and the Investor will purchase from the Company, upon the
terms and conditions set forth herein, the number of Shares set
forth on the last page of the Agreement to which these Terms
and Conditions for Purchase of Shares are attached as Annex
I (the “ Signature Page ”) for the aggregate
purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially
this same form of Subscription Agreement with certain other
investors (the “ Other Investors ”) and expects
to complete sales of Shares to them. The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the
“ Investors ,” and this Agreement and the
Subscription Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the “
Agreements.”
|
3.
|
Closings and Delivery of the Shares and
Funds.
|
3.1 Closing.
The completion of the purchase and
sale of the Shares (the “ Closing ”) shall occur
at a place and time (the “ Closing Date ”) to be
specified by the Company, and of which the Investors will be
notified in advance by the Company. At the Closing, (a) the
Company shall cause the Transfer Agent to deliver to the Investor
the number of Shares set forth on the Signature
Page registered in the name of the Investor or, if so
indicated on the Investor Questionnaire attached hereto as
Exhibit A , in the name of a nominee designated by the
Investor and (b) the aggregate purchase price for the Shares
being purchased by the Investor will be delivered by or on behalf
of the Investor to the Company.
3.2 Conditions to the
Company’s Obligations. (a) The Company’s obligation to issue
and sell the Shares to the Investor shall be subject to:
(i) the receipt by the Company of the purchase price for the
Shares being purchased hereunder as set forth on the Signature
Page; (ii) the Company obtaining NYSE Amex LLC approval for
the listing of the Shares; and (iii) the accuracy of the
representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled
prior to the Closing Date.
3.3 Conditions to the
Investor’s Obligations. (a) The Investor’s obligation to
acquire Shares shall be subject to: (i) the receipt by the
Investor of the Shares being purchased hereunder; (ii) the
Company obtaining NYSE Amex LLC approval for the listing of the
Shares; (iii) the representations and warranties made by the
Company shall be true and correct as of the date hereof and as of
the Closing Date; (iv) the fulfillment of those undertakings
of the Company to be fulfilled prior to the Closing Date and
(v) delivery to the Investor of the Prospectus
Supplement.
3.4 Delivery of Funds.
Immediately at the time of Closing,
the Investor shall remit by wire transfer the amount of funds equal
to the aggregate purchase price for the Shares being purchased by
the Investor to the following account designated by the
Company:
BANK OF THE WEST, N.A.
ABA Number: 121100782
Account Name: Kodiak Oil &
Gas Corp.
Account Number: 339001083
Ref: Kodiak Registered Direct
Offering
Attn: Alfredo Benavente
Tel: 303-260-7269
4
3.5 Delivery of
Shares. No later than one
(1) business day after the execution of this agreement by the
Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with
the Shares being purchased by such Investor are maintained, which
broker/dealer shall be a DTC participant, to set up a
Deposit/Withdrawal at Custodian (“ DWAC ”)
instructing Computershare Investor Services Inc., the
Company’s transfer agent, to credit such account or accounts
with the Shares by means of an electronic book-entry delivery. Such
DWAC shall indicate the settlement date for the deposit of the
Shares, which date shall be provided to the Investor by the
Company. Simultaneously with the delivery to the Company by the
Investors of the funds pursuant to Section 3.3 above,
the Company shall direct its transfer agent to credit the
Investor’s account or accounts with the Shares pursuant to
the information contained in the DWAC.
|
4.
|
Representations, Warranties and Covenants of the
Investor.
|
The Investor represents and warrants to, and
agrees with, the Company that:
4.1 The Investor (a) is knowledgeable,
sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in shares presenting an
investment decision like that involved in the purchase of the
Shares, including investments in securities issued by the Company
and investments in comparable companies, (b) has answered all
questions on the Signature Page and the Investor Questionnaire
for use in preparation of the Prospectus Supplement and the answers
thereto are true and correct as of the date hereof and will be true
and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Shares set forth on the
Signature Page, has received and is relying solely upon the
Disclosure Package and the documents incorporated by reference
therein.
4.2 The Investor acknowledges that (a) no
action has been or will be taken in any jurisdiction outside the
United States by the Company that would permit an offering of the
Shares, or possession or distribution of offering materials in
connection with the issue of the Shares in any jurisdiction outside
the United States where action for that purpose is required and
(b) if the Investor is outside the United States, it will
comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers
Shares or has in its possession or distributes any offering
material, in all cases at its own expense.
4.3 (a) The Investor has full right, power,
authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligatio
