Exhibit 1.1
Execution Version
12,477,500 Trust Units
WHITING USA TRUST I
UNDERWRITING AGREEMENT
St.
Petersburg, Florida
April 24, 2008
Raymond
James & Associates, Inc.
Wachovia Capital Markets, LLC
As Representatives of the Several Underwriters
listed on Schedule I
hereto
c/o
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
c/o
Wachovia Capital Markets, LLC
375 Park Avenue
New York, New York 10152
Ladies
and Gentlemen:
Whiting Petroleum Corporation, a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to sell to the several
Underwriters named in Schedule I hereto (the
“Underwriters”), an aggregate of 12,477,500 units of
beneficial interest (the “Trust Units”) in Whiting USA
Trust I, a statutory trust formed under the laws of the State of
Delaware (the “Trust”). The aggregate of 10,850,000
Trust Units to be purchased from the Company are called the
“Firm Units.” In addition, the Company has agreed to
sell to the Underwriters, upon the terms and conditions stated
herein, up to an additional 1,627,500 Trust Units (the
“Additional Units”) to cover over-allotments by the
Underwriters, if any. The Firm Units and the Additional Units are
collectively referred to in this Agreement as the
“Units.” Raymond James & Associates, Inc. and
Wachovia Capital Markets, LLC (“Wachovia Securities”)
are acting as the representatives of the several Underwriters and
in such capacity are referred to in this Agreement as the
“Representatives.”
The Company wishes to confirm as
follows its agreement with you and the other several Underwriters,
on whose behalf you are acting, in connection with the several
purchases of the Units from the Company.
1. Registration Statement
and Prospectus . The Trust and the Company have prepared and
filed with the Securities and Exchange Commission (the
“Commission”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Act”),
a registration statement on Form S-1/S-3 (File
No. 333-147543), including the related preliminary prospectus
or
prospectuses, relating to the Units. Such registration statement
covers the registration of the Units under the Act. Promptly after
execution and delivery of this Agreement, the Trust and the Company
will prepare and file a prospectus in accordance with the
provisions of Rule 430A (“Rule 430A”) of the
Act and paragraph (b) of Rule 424
(“Rule 424(b)”) of the Act. Any information
included in such prospectus that was omitted from such registration
statement at the time it became effective but that is deemed to be
part of and included in such registration statement pursuant to
Rule 430A is referred to as “Rule 430A
Information”. Each prospectus used in connection with the
offering of the Units that omitted Rule 430A Information is
herein called a “Preliminary Prospectus.” Such
registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act at such time and the
documents otherwise deemed to be a part thereof or included therein
by Act, is herein called the “Registration Statement.”
The Registration Statement at the time it originally became
effective is herein called the “Original Registration
Statement.” The final prospectus in the form first furnished
to the Underwriters for use in connection with the offering of the
Units, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act at the time of
the execution of this Agreement, is herein called the
“Prospectus.” If the Trust or the Company files another
registration statement with the Commission to register a portion of
the Units pursuant to Rule 462(b) under the Act (the
“Rule 462 Registration Statement”), then any
reference to “Registration Statement” herein shall be
deemed to include the registration statement on Form S-1/S-3 (File
No. 333-147543) and the Rule 462 Registration Statement,
as each such registration statement may be amended pursuant to the
Act. For purposes of this Agreement, “free writing
prospectus” has the meaning ascribed to it in Rule 405
under the Act (“Rule 405”), and “Issuer Free
Writing Prospectus” shall mean each free writing prospectus
prepared by or on behalf of the Company or the Trust or used or
referred to by the Company or the Trust in connection with the
offering of the Units. “Time of Sale Information” shall
mean the Preliminary Prospectus, each free writing prospectus, if
any, identified in Schedule II hereto and the information set
out in Schedule III hereto. All references in this Agreement
to the Registration Statement, the Rule 462 Registration Statement,
the Preliminary Prospectus, the Prospectus or the Time of Sale
Information, or any amendments or supplements to any of the
foregoing, shall be deemed to refer to and include any documents
incorporated by reference therein, and shall include any copy
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“EDGAR”).
“Effective Date” means each date and time as of which
any Registration Statement was or is declared effective by the
Commission. “Time of Sale” means 9:30 a.m., St.
Petersburg, Florida time, on April 25, 2008.
2. Agreements to Sell and
Purchase . The Company hereby agrees to sell the Firm Units to
the Underwriters and, upon the basis of the representations,
warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the
Company at a purchase price of $18.75 per Unit (the “purchase
price per Unit”), the number of Firm Units set forth opposite
the name of such Underwriter in Schedule I hereto.
The Company hereby also agrees to
sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth
herein, the Underwriters shall have the right for 30 days from
the date of the Prospectus to purchase from the Company up to
1,627,500 Additional Units at the
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purchase
price per Unit for the Firm Units. The Additional Units may be
purchased solely for the purpose of covering over-allotments, if
any, made in connection with the offering of the Firm Units. If any
Additional Units are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase the number of Additional Units
(subject to such adjustments as you may determine to avoid
fractional units) that bears the same proportion to the total
number of Additional Units to be purchased by the Underwriters as
the number of Firm Units set forth opposite the name of such
Underwriter in Schedule I hereto bears to the total number of
Firm Units. The option to purchase Additional Units may be
exercised at any time within 30 days after the date of the
Prospectus, and at the Underwriters’ election, this option
may be partially exercised on more than one occasion.
3. Terms of Public
Offering . The Company has been advised by you that the
Underwriters propose to make a public offering of their respective
portions of the Units as soon after the Registration Statement and
this Agreement have become effective as in your judgment is
advisable and initially to offer the Units upon the terms set forth
in the Prospectus.
Not later than 12:00 p.m. on the
second business day following the date the Units are released by
the Underwriters for sale to the public, the Company shall deliver
or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representatives shall
request.
4. Delivery of the Units and
Payment Therefor . Delivery to the Underwriters of the Firm
Units and payment therefor shall be made at the offices of the
Company, 1700 Broadway, Suite 2300, Denver, Colorado at
10:00 a.m., St. Petersburg, Florida time, on April 30,
2008 or such other place, time and date not later than 1:30 p.m.,
St. Petersburg, Florida time, on May 14, 2008 as the
Representatives shall designate by notice to the Company (the time
and date of such closing are called the “Closing
Date”). The place of closing for the Firm Units and the
Closing Date may be varied by agreement between the Representatives
and the Company. The Company hereby acknowledges that circumstances
under which the Representatives may provide notice to postpone the
Closing Date as originally scheduled include any determination by
the Company or the Representatives to recirculate to the public
copies of an amended or supplemented Prospectus or a delay as
contemplated by the provisions of Section 12 hereof.
Delivery to the Underwriters of and
payment for any Additional Units to be purchased by the
Underwriters shall be made at the offices of the Company, 1700
Broadway, Suite 2300, Denver, Colorado at 10:00 a.m., St.
Petersburg, Florida time, on such date or dates (each an
“Additional Closing Date”) (which may be the same as
the Closing Date, but shall in no event be earlier than the Closing
Date nor earlier than three nor later than ten business days after
the giving of the notice hereinafter referred to) as shall be
specified in a written notice or notices, from the Representatives
on behalf of the Underwriters to the Company, of the
Underwriters’ determination to purchase a number, specified
in such notice, of Additional Units. Such notice or notices may be
given at any time within 30 days after the date of the
Prospectus and must set forth (i) the aggregate number of
Additional Units as to which the Underwriters are exercising the
option and (ii) the names and denominations in which the
certificates for which the Additional Units are to be registered.
The place of closing for the Additional Units and the Additional
Closing Date may be varied by agreement between the Representatives
and the Company.
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Delivery of the Firm Units and of any
Additional Units to be purchased hereunder shall be made through
the facilities of The Depository Trust Company (“DTC”)
against payment of the purchase price therefore by wire transfer of
immediately available funds to an account or accounts specified in
writing, not later than the close of business on the business day
next preceding the Closing Date or the Additional Closing Date, as
the case may be, by the Company. Payment for the Units sold by the
Company hereunder shall be delivered by the Representatives to the
Company.
It is understood that the
Representatives have been authorized, for their own account and the
accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price per Unit for
the Firm Units and the Additional Units, if any, that the
Underwriters have agreed to purchase. Raymond James and Associates,
Inc. or Wachovia Securities, individually and not as a
Representative of the Underwriters, may, but shall not be obligated
to, make payment for any Units to be purchased by any Underwriter
whose funds shall not have been received by the Representatives by
the Closing Date or the Additional Closing Date, as the case may
be, for the account of such Underwriter, but any such payment shall
not relieve such Underwriter from any of its obligations under this
Agreement.
5. Covenants and
Agreements .
5.1 Of the Company . The
Company covenants and agrees with the several Underwriters as
follows:
(a) The
Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective, if it has
not already become effective, and will advise you promptly and, if
requested by you, will confirm such advice in writing (i) when
the Registration Statement has become effective and the time and
date of any filing of any post-effective Registration Statement or
any amendment or supplement to any Preliminary Prospectus or the
Prospectus and the time and date that any post-effective amendment
to the Registration Statement becomes effective, (ii) if
Rule 430A under the Act is employed, when the Prospectus has
been timely filed pursuant to Rule 424(b) under the Act,
(iii) of the receipt of any comments of the Commission, or any
request by the Commission for amendments or supplements to the
Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of
the Units for offering or sale in any jurisdiction or the
initiation of any proceeding for such purposes and (v) within
the period of time referred to in Section 5.1(h) below, of any
change in the Company’s condition (financial or other),
business, prospects, properties, net worth or results of
operations, or of any event that comes to the attention of the
Company that makes any statement made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue in any
material respect or that requires the making of any additions
thereto or changes therein in order to make the statements therein
(in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading in any material respect,
or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Act or any other
applicable law. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
The Company will
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provide
the Underwriters with copies of the form of Prospectus, in such
number as the Underwriters may reasonably request, and file with
the Commission such Prospectus in accordance with Rule 424(b) of
the Act before the close of business on the first business day
immediately following the date hereof.
(b) The
Company will furnish to you, without charge, a photocopy of the
signed original of the Registration Statement as originally filed
with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto, and will also
furnish to you, without charge, such number of conformed copies of
the Registration Statement as originally filed and of each
amendment thereto as you may reasonably request.
(c) The
Company will promptly file with the Commission any amendment or
supplement to the Registration Statement or the Prospectus that
may, in the judgment of the Company or the Representatives be
required by the Act or requested by the Commission.
(d) The
Company will furnish a copy of any amendment or supplement to the
Registration Statement or to the Prospectus or any Issuer Free
Writing Prospectus to the Representatives and counsel for the
Underwriters and obtain your consent prior to filing any of those
with the Commission, which consent shall not be unreasonably
withheld or delayed.
(e) The
Company will not make any offer relating to the Units that would
constitute an Issuer Free Writing Prospectus without your prior
consent, which consent shall not be unreasonably withheld or
delayed.
(f) The
Company will retain in accordance with the Act all Issuer Free
Writing Prospectuses not required to be filed pursuant to the Act;
and if at any time after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus,
as then amended or supplemented, would conflict with the
information in the Registration Statement, the Preliminary
Prospectus or the Prospectus or would include an 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 under which they were made, not misleading, or, if
for any other reason it shall be necessary to amend or supplement
any Issuer Free Writing Prospectus, to notify you and, upon your
request, to file such document (if required to be filed pursuant to
the Act) and to prepare and furnish without charge to each
Underwriter as many copies as they may from time to time reasonably
request of an amended or supplemented Issuer Free Writing
Prospectus that will correct such conflict, statement or omission
or effect such compliance.
(g) Prior
to the execution and delivery of this Agreement, the Company has
delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter reasonably
request, copies of each form of the Preliminary Prospectus.
Consistent with the provisions of Section 5.1(h) hereof, the
Company consents to the use, in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Units are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus,
of each Preliminary Prospectus so furnished by the Company.
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(h) As
soon after the execution and delivery of this Agreement as is
practicable and thereafter from time to time for such period as in
the reasonable opinion of counsel for the Underwriters a prospectus
is required by the Act to be delivered in connection with sales by
any Underwriter or a dealer (the “Prospectus Delivery
Period”), and for so long a period as you may request for the
distribution of the Units, the Company will deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus and the Time of Sale Information (and of any amendment
or supplement thereto) as they may reasonably request. The Company
consents to the use of the Prospectus and the Time of Sale
Information (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities
or Blue Sky laws of the jurisdictions in which the Units are
offered by the several Underwriters and by all dealers to whom
Units may be sold, both in connection with the offering and sale of
the Units and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection with sales by
any Underwriter or dealer. If at any time prior to the later of
(i) the completion of the distribution of the Units pursuant
to the offering contemplated by the Registration Statement or
(ii) the expiration of prospectus delivery requirements with
respect to the Units under Section 4(3) of the Act and
Rule 174 thereunder, any event shall occur that in the
judgment of the Company or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any
other law, the Company will forthwith prepare and, subject to
Section 5.1(a) hereof, file with the Commission and use its
best efforts to cause to become effective as promptly as possible
an appropriate supplement or amendment thereto, and will furnish to
each Underwriter who has previously requested Prospectuses, without
charge, a reasonable number of copies thereof.
(i) If
this Agreement shall terminate or shall be terminated after
execution pursuant to Section 13(i) hereof or if this Agreement
shall be terminated by the Underwriters because of any inability,
failure or refusal on the part of the Company or the Trust to
perform in all material respects any agreement herein or to comply
in all material respects with any of the terms or provisions hereof
or to fulfill in all material respects any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives
and the other Underwriters, other than defaulting Underwriters, for
all out-of-pocket expenses (including travel expenses and
reasonable fees and expenses of counsel for the Underwriters, but
excluding wages and salaries paid by the Representatives or the
other Underwriters) reasonably incurred by the Representatives or
the other Underwriters in connection herewith, up to a maximum
aggregate amount of $300,000.
(j) The
Company will apply the net proceeds from the sale of the Units to
be sold by it hereunder in accordance in all material respects with
the statements under the caption “Use of Proceeds” in
the Prospectus.
(k) For
a period commencing on the date hereof and ending on the 180th day
after the date of the Prospectus (the “Lock-Up
Period”), not to, directly or indirectly, (i) offer for
sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to,
result in the disposition by any person at any time in the future
of) (collectively, a “Disposition”) any Trust Units, or
other securities of the Trust, or other securities
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that are
derived from the Subject Interests (as defined in the Conveyance,
which is defined in Section 6(p) of this Agreement) that are
substantially similar to the Trust Units, or securities convertible
into or exchangeable for Trust Units, or sell or grant options,
rights or warrants with respect to any Trust Units or securities
convertible into or exchangeable for Trust Units (collectively,
“Trust Securities”), (ii) enter into any swap or
other derivatives transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of ownership of
such Trust Units, whether any such transaction is to be settled by
delivery of Trust Units or other securities, in cash or otherwise,
(iii) file or cause to be filed a registration statement,
including any amendments, with respect to the registration of any
Trust Securities or (iv) publicly disclose the intention to do
any of the foregoing, in each case without the prior written
consent of the Representatives on behalf of the Underwriters;
notwithstanding the foregoing if (x) during the last
17 days of the Lock-Up Period, the Trust issues a release
concerning distributable cash or announces material news or a
material event relating to the Trust occurs or (y) prior to
the expiration of the Lock-Up Period, the Trust announces that it
will release distributable cash results during the 16-day period
beginning on the last day of the Lock-Up Period, then the
restrictions imposed in this Section 5.1(k) shall continue to
apply until the expiration of the 18-day period beginning on the
date of issuance of the earnings release or the announcement of the
material news or the occurrence of the material event, unless the
Representatives, on behalf of the Underwriters, waives such
extension in writing. In addition, this Section 5.1(k) shall
not restrict or prohibit the undersigned from pledging or otherwise
granting a security interest with respect to any Trust Securities
held by the undersigned pursuant to that certain Third Amended and
Restated Credit Agreement, dated as of August 31, 2005, among
the Company, the financial institutions named therein and JPMorgan
Chase Bank, N.A., as administrative agent.
(l) The
Company will comply with all provisions of any undertakings
contained in the Registration Statement.
(m) The
Company will not at any time, directly or indirectly, take any
action designed, or which might reasonably be expected to cause or
result in, or which will constitute, stabilization or manipulation
of the price of the Trust Units to facilitate the sale or resale of
any of the Units in violation of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”), the Act
or other applicable law.
(n) On
the Closing Date, all stock transfer and other taxes (other than
income taxes) that are required to be paid in connection with the
sale and transfer of the Firm Units to be sold by the Company to
the Underwriters hereunder will have been fully paid for by the
Company and all laws imposing such taxes will have been fully
complied with.
(o) On
the Additional Closing Date, all stock transfer and other taxes
(other than income taxes) that are required to be paid in
connection with the sale and transfer of the Additional Units to be
sold by the Company to the Underwriters, if any, hereunder will
have been fully paid for by the Company and all laws imposing such
taxes will have been fully complied with.
(p) In
order to document the Underwriters’ compliance with the
reporting and withholding provisions of the Internal Revenue Code
of 1986, as amended (the “Code”), and the
7
regulations promulgated thereunder, with respect to the
transactions herein contemplated, the Company shall deliver to you
at least two days prior to the Closing Date and the Additional
Closing Date, as the case may be, a properly completed and executed
United States Treasury Department Substitute Form W-9.
(q) Not
more than sixty business days following the Closing Date, the
Company will file the Conveyance in the counties in the states
listed on Schedule IV covering the leases covered by the
Conveyance. The Company will provide to the Representatives
evidence of such filings reasonably satisfactory to counsel for the
Representatives as promptly as practicable following the time of
such filings, and in any event not more than seventy-five business
days following the Closing Date.
(r) The
Company will comply with all agreements and satisfy all conditions
on its part to be complied with or satisfied pursuant to this
Agreement on or prior to the Closing Date or the Additional Closing
Date, as the case may be, and will advise the Underwriters prior to
the Closing Date or the Additional Closing Date, as the case may
be, if any statements to be made on behalf of the Company in the
certificate contemplated by Section 9 hereof would be
inaccurate if made as of the Closing Date or the Additional Closing
Date, as the case may be.
5.2 Of the Trust . The Bank of
New York Trust Company, N.A. (as successor to JP Morgan Chase Bank,
N.A.), as trustee of the Trust (the “Trustee”), on
behalf of the Trust, covenants and agrees with the several
Underwriters as follows:
(a) The
Trustee will cause the Trust to cooperate with you and counsel for
the Underwriters in connection with the registration or
qualification of the Units for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws
of such jurisdictions as you may reasonably designate and will file
such consents to service of process or other documents as may be
reasonably necessary in order to effect and maintain such
registration or qualification for so long as required to complete
the distribution of the Units; provided that in no event shall the
Trust be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to general service of process in suits, other than those
arising out of the offering or sale of the Units, as contemplated
by this Agreement and the Prospectus, in any jurisdiction where it
is not now so subject. In the event that the qualification of the
Units in any jurisdiction is suspended, the Trustee shall so advise
you promptly in writing. The Trustee will use its reasonable best
efforts to qualify or register the Trust Units for sale in
non-issuer transactions under (or obtain exemptions from the
application of) the Blue Sky laws of each state where necessary to
permit market making transactions and secondary trading and will
use its reasonable best efforts to cause the Trust to comply with
such Blue Sky laws and to continue such qualifications,
registrations and exemptions in effect for a period of five years
after the date hereof.
(b) The
Trustee will cause the Trust to timely file with the New York Stock
Exchange (the “NYSE”) all documents and notices
required by the NYSE of trusts that have or will issue securities
that are traded on the NYSE.
(c) The
Trustee will cause the Trust to engage and maintain, at its
expense, a transfer agent and, if necessary under the jurisdiction
of its organization or the rules of any
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national
securities exchange on which the Trust Units will be listed, a
registrar (which, if permitted by applicable laws and rules may be
the same entity as the transfer agent) for the Trust Units.
(d) The
Trustee will cause the Trust to make generally available to holders
of the Trust Units a consolidated earnings statement (in form
complying with the provisions of Rule 158 of the Act), which
need not be audited, covering a 12-month period commencing after
the effective date of the Registration Statement and the
Rule 462 Registration Statement, if any, and ending not later
than 15 months thereafter, as soon as practicable after the
end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(e) The
Trustee will cause the Trust to furnish to holders of the Trust
Units as soon as practicable after the end of each fiscal year an
annual report (including financial statements of the Trust
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after
the effective date of the Registration Statement), to make
available to holders of the Trust Units summary financial
information of the Trust for such quarter in reasonable detail. For
purposes of this Section 5.2(e), the Trust shall be deemed to
have made available such summary financial information if such
information has been filed on EDGAR
(f) During
the period ending three years from the date hereof, the Trustee
will cause the Trust to furnish to you and, upon your request, to
each of the other Underwriters, (i) as soon as available, a
copy of each proxy statement, quarterly or annual report or other
report of the Trust mailed to unitholders or filed with the
Commission, the NYSE or any other national securities exchange and
(ii) from time to time such other information concerning the
Trust as you may reasonably request. For purposes of this
Section 5.2(f), the Trust shall be deemed to have furnished
the required information if such document has been filed on
EDGAR.
6. Representations and
Warranties of the Company . The Company hereby represents and
warrants to each Underwriter on the date hereof, and shall be
deemed to represent and warrant to each Underwriter on the Closing
Date and the Additional Closing Date, as the case may be,
that:
(a) Neither
the Company nor the Trust was at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the
Company, the Trust or any other offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Act)
of the Trust Units, is not on the date hereof and will not be on
the Closing Date and the Additional Closing Date, as the case may
be, an “ineligible issuer” (as defined in
Rule 405).
(b) The
Registration Statement conformed on the Effective Date and will
conform on each of the Closing Date and the Additional Closing
Date, as the case may be, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects, when filed, to the requirements of the Act. The
Preliminary Prospectus conformed, when filed, and the Prospectus
will conform, when filed, with the Commission pursuant to Rule
424(b) and on the Closing Date and the Additional Closing Date, as
the case may be, to the requirements of the Act.
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(c) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation
or warranty is made as to information contained in or omitted from
the Registration Statement in reliance upon and in conformity with
written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(d) The
Prospectus will not, as of its date and on the Closing Date or the
Additional Closing Date, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty
is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion
therein.
(e) The
Time of Sale Information, all considered together, did not, as of
the Time of Sale, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
that no representation or warranty is made as to information
contained in or omitted from the Time of Sale Information in
reliance upon and in conformity with written information furnished
to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(f) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Time of Sale Information at the
Time of Sale, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading provided
that no representation or warranty is made as to information
contained in or omitted from an Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished
to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(g) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Act on the date of
first use, and the Company has complied with all prospectus
delivery and any filing requirements applicable to such Issuer Free
Writing Prospectus pursuant to the Act. The Company has not made
any offer relating to the Trust Units that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representatives. The Company has retained in accordance with
the Act all Issuer Free Writing Prospectuses that were not required
to be filed pursuant to the Act. The Company has taken all actions
necessary so that any “road show” (as defined in
Rule 433) in connection with the offering of the Trust Units
will not be required to be filed pursuant to the Act.
(h) The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
10
Exchange
Act, and, when read together with the other information in the
Prospectus, (a) at the time the Registration Statement becomes
effective, (b) at the earlier of the time the Prospectus was
first used and the date and time of the first contract of sale of
Units in this offering and (c) at the Closing Date and the
Additional Closing Date, did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(i) There
are no contracts or documents which are required to be described in
the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as
required.
(j) Neither
the Company nor any affiliate of the Company has taken, nor will
the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would
be expected to cause or result in stabilization or manipulation of
the price of the Trust Units to facilitate the sale or resale of
the Units.
(k) Each
of the Company, Whiting Oil and Gas Corporation, Whiting Programs,
Inc. and Equity Oil Company (Whiting Oil and Gas Corporation,
Whiting Programs, Inc. and Equity Oil Company, each a
“Subsidiary” and together, the
“Subsidiaries”) is a corporation duly organized and
validly existing as a corporation in good standing under the laws
of the state of its incorporation with full corporate power and
authority to own, lease and operate its properties and to conduct
its business as presently conducted and as described in the
Registration Statement, the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure to so
register or qualify has not had or will not have a material adverse
effect on the condition (financial or other), business, properties,
net worth, results of operations or business prospects of the
Company and the Subsidiaries, taken as a whole (a “Material
Adverse Effect”). As of the date of this Agreement, the only
subsidiaries of the Company are the Subsidiaries, Whiting
Transpetco LP, LLC and Whiting Transpetco GP, LLC. The subsidiaries
of the Company, other than the Subsidiaries, considered in the
aggregate as a single subsidiary, do not constitute a
“significant subsidiary” as defined in Rule 1-02
of Regulation S-K.
(l) The
Trust is duly organized and validly existing as a statutory trust
in good standing under the laws of the State of Delaware with full
power and authority to own its properties as described in the
Registration Statement, the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto).
(m) There
are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or its
subsidiaries or to which the Company or its subsidiaries or any of
their properties, including the Subject Interests, are subject,
that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement thereto) but are not
described as required. Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, there
is no action, suit, inquiry, proceeding or investigation by or
before any court or governmental or other regulatory or
administrative agency or commission pending or, to the knowledge of
the Company,
11
threatened against or involving the Company or its subsidiaries,
which might individually or in the aggregate prevent or adversely
affect the transactions contemplated by this Agreement or would
have a material adverse effect on the Net Profits Interest and the
Pre-Effective Time Payment (each as defined in the Conveyance) or
result in a Material Adverse Effect, nor to the Company’s
knowledge, is there any basis for any such action, suit, inquiry,
proceeding or investigation.
(n) Neither
the Company nor any of its subsidiaries is (i) in violation of
(A) its organizational documents or agreements, (B) any
law, ordinance, administrative or governmental rule or regulation
applicable to the Company or any of its subsidiaries, the violation
of which would have a Material Adverse Effect or (C) any
decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries, the
violation of which would have a Material Adverse Effect; or
(ii) in default in any material respect in the performance of
any obligation, agreement or condition contained in (A) any
bond, debenture, note or any other evidence of indebtedness or
(B) any agreement, indenture, lease or other instrument (each
of (A) and (B), an “Existing Instrument”) to which
the Company or any of its subsidiaries is a party or by which any
of their properties may be bound, which default would have a
Material Adverse Effect; and there does not exist any state of
facts that constitutes an event of default on the part of the
Company or any of its subsidiaries as defined in such documents or
that, with notice or lapse of time or both, would constitute such
an event of default, where the existence of such state of facts
would have a Material Adverse Effect.
(o) Each
of this Agreement and the trust agreement (the
“Organizational Trust Agreement”) by and among Whiting
Oil and Gas Corporation, Equity Oil Company, the Trustee, and
Wilmington Trust Company, as Delaware trustee of the Trust (the
“Delaware Trustee”), has been duly authorized, executed
and delivered by the Company, Whiting Oil and Gas Corporation and
Equity Oil Company, as applicable; each of the amended and restated
trust agreement (the “Trust Agreement”) by and among
Whiting Oil and Gas Corporation, Equity Oil Company, the Trustee
and the Delaware Trustee, and the administrative services agreement
(the “Administrative Services Agreement”) between
Whiting Oil and Gas Corporation and the Trust, each in the form to
be in effect as of the Closing Date, has been duly authorized and
will be duly executed and delivered by Whiting Oil and Gas
Corporation and Equity Oil Company, as applicable, as of the
Closing Date; and the Organizational Trust Agreement constitutes,
and each of the Trust Agreement and the Administrative Services
Agreement when duly executed and delivered by Whiting Oil and Gas
Corporation and Equity Oil Company, as applicable, and the other
parties thereto will constitute, a valid and legally binding
agreement of Whiting Oil and Gas Corporation and Equity Oil
Company, as applicable, enforceable against Whiting Oil and Gas
Corporation and Equity Oil Company, as applicable, in accordance
with its terms, except to the extent enforceability may be limited
by (i) the application of bankruptcy, reorganization,
insolvency and other laws affecting creditors’ rights
generally and (ii) equitable principles being applied at the
discretion of a court before which any proceeding may be brought.
The holders of the Trust Units are entitled to the benefits of the
Trust Agreement.
(p) The
Conveyance of the Net Profits Interest attached hereto as
Exhibit A (the “Conveyance”) by and between
Whiting Oil and Gas Corporation and Equity Oil Company (each a
“Conveying Subsidiary” and, collectively, the
“Conveying Subsidiaries”) and the Trust has been duly
authorized and, when duly executed by the proper officers of the
Conveying
12
Subsidiaries (assuming due execution and delivery by the Trustee)
and delivered by the Conveying Subsidiaries to the Trust will
constitute valid and binding agreements of the Conveying
Subsidiaries enforceable against the Conveying Subsidiaries in
accordance with its terms, except as enforceability of the
Conveyance may be limited by (i) the application of
bankruptcy, reorganization, insolvency and other laws affecting
creditors’ rights generally and (ii) equitable
principles being applied at the discretion of a court before which
any proceeding may be brought; the form of the Conveyance complies
with the laws of each of the states in which such Conveyance is to
be recorded or filed, including all applicable recording, filing
and registration laws and regulations, and is adequate and
sufficient to transfer title to the Net Profits Interest and the
Pre-Effective Time Payment to the Trust; the recording of the
Conveyance in the real property records in each county where the
Subject Interests are located is sufficient to impart notice of the
contents thereof, and all subsequent purchasers or creditors of the
Company or the Conveying Subsidiaries will be deemed to purchase
with notice of and subject to such Net Profits Interest and
Pre-Effective Time Payment; the Conveyance, the Net Profits
Interest and the Pre-Effective Time Payment conform in all material
respects to the descriptions thereof in the Prospectus; the Net
Profits Interest and the Pre-Effective Time Payment described in
the Prospectus are described in the Conveyance in a manner
sufficient to identify the interests conveyed under the laws of
each of the states listed on Schedule IV; and on the Closing
Date 13,863,889 Trust Units shall have been issued by the Trust to
the Conveying Subsidiaries in consideration for the conveyance by
the Conveying Subsidiaries to the Trust of the Net Profits Interest
and the Pre-Effective Time Payment pursuant to the Conveyance,
after which such 13,863,889 Trust Units shall have been distributed
by the Conveying Subsidiaries to the Company; on the Closing Date
and the Additional Closing Date, as the case may be, 13,863,889
Trust Units will be issued and outstanding.
(q) The
Trust Units have been duly authorized for issuance by the Trust,
and, when duly issued and delivered to the Company in accordance
with the Trust Agreement, the Trust Units will be duly and validly
issued and outstanding, fully paid and nonassessable and are free
of any preemptive or similar rights, and will constitute valid and
binding obligations of the Trust entitled to the benefits of the
Trust Agreement and enforceable in accordance with their terms,
except as the enforceability of each may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other
laws affecting creditors’ rights generally and
(ii) equitable principles being applied at the discretion of a
court before which any proceeding may be brought. The Trust Units,
when issued and delivered, will conform in all material respects to
the description thereof contained in the Prospectus.
(r) On
the Closing Date, the Company will have good and valid title to the
Trust Units to be sold by the Company hereunder, free and clear of
all liens, encumbrances, equities or claims whatsoever, and the
Company has full power and authority to sell, assign, transfer and
deliver such Trust Units hereunder; and, upon the delivery of such
Trust Units and payment therefor pursuant hereto, good and valid
title to such Trust Units, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters.
(s) All
consents, approvals, authorizations and orders necessary for the
transfer of the Net Profits Interest and the Pre-Effective Time
Payment to the Trust as described in the Prospectus have been
obtained and such transfer has not had the effect of creating, and
there does not exist, any lien, claim, encumbrance or equity of any
kind in favor of any person
13
with
respect to any of the Net Profits Interest or the Pre-Effective
Time Payment except (i) to the extent such rights have been
validly waived in writing or (ii) to the extent such liens,
claims, encumbrances or equities, which, if asserted or exercised,
would not have a material adverse effect on the value of the Trust
Units.
(t) None
of (i) the formation of the Trust by the execution and
delivery of the Organizational Trust Agreement, (ii) the
transfer of the Net Profits Interest and the Pre-Effective Time
Payment by the Conveying Subsidiaries to the Trust by the execution
and delivery of the Conveyance, (iii) the distribution of the
13,863,889 Trust Units by the Conveying Subsidiaries to the
Company, (iv) the sale of the Units by the Company or (iv) the
execution, delivery or performance of this Agreement, the
Organizational Trust Agreement, the Trust Agreement, the
Administrative Services Agreement and the Conveyance by the Company
and the Trust nor the consummation by the Company and the Trust of
the transactions contemplated hereby (A) requires any consent,
approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be
required for the registration of the Units under the Act, the
listing of the Units for trading on the NYSE, the registration of
the Trust Units under the Exchange Act and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which
will be, or have been, effected in accordance with this Agreement
and except for the Financial Industry Regulatory Authority’s
(“FINRA”) clearance of the underwriting terms of the
offering contemplated hereby as required under FINRA’s NASD
Conduct Rules), (B) conflicts with or will conflict with or
constitutes or will constitute a breach of, or a default under, the
Company’s articles of organization or operating agreement or
any agreement, indenture, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which any of
its properties may be bound, (C) violates any statute, law,
regulation, ruling, filing, judgment, injunction, order or decree
applicable to the Company or any of its subsidiaries or any of
their properties or (D) results in a breach of, or default or
Debt Repayment Triggering Event (as defined below) under, or
results in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, or requires the consent of any other
party to, any Existing Instrument, except as disclosed in the
Prospectus and except for such consents, approvals, authorizations,
orders, registrations, filings, conflicts, breaches, defaults,
liens, charges or encumbrances that will not, individually or in
the aggregate, result in a Material Adverse Effect. As used herein,
a “Debt Repayment Triggering Event” means any event or
condition that gives, or with the giving of notice or lapse of time
would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company.
(u) Except
as described in the Time of Sale Information and the Prospectus,
neither the Company nor any of its subsidiaries has outstanding and
at the Closing Date and the Additional Closing Date, as the case
may be, will have outstanding any options to purchase, or any
warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
any Trust Units or any such warrants, convertible securities or
obligations.
(v) Deloitte
& Touche LLP, the certified public accountants who have
certified the financial statements of the Company, the Trust and
the Underlying Properties (as
14
defined
in the Conveyance) (including the related notes thereto and
supporting schedules) filed as part of the Registration Statement
and the Prospectus (or any amendment or supplement thereto), are
independent public accountants as required by the Act.
(w) The
financial statements, together with related schedules and notes,
included in the Registration Statement, the Time of Sale
Information and the Prospectus (and any amendment or supplement
thereto), present fairly in all material respects, on the basis set
forth in the Prospectus, the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the
statement of income, stockholders’ equity and cash flows of
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States (“GAAP”) applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in all
material respects in accordance with GAAP the information required
to be stated therein. The summary financial information included in
the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement. All disclosures contained in the
Registration Statement, the Time of Sale Information or the
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the
Commission) comply in all material respects with Regulation G
of the Exchange Act and Item 10 of Regulation S-K under
the Act, to the extent applicable.
(x) The
information underlying the estimates of reserves of the Company and
its subsidiaries, which was supplied by the Company to Cawley,
Gillespie & Associates, Inc. (“Cawley Gillespie”),
independent petroleum engineers, for purposes of auditing the
reserve reports and estimates of the Company and preparing the
letter (the “Reserve Report Letter”) of Cawley
Gillespie, including, without limitation, production, costs of
operation and development, current prices for production,
agreements relating to current and future operations and sales of
production, was true and correct in all material respects on the
dates such estimates were made and such information was supplied
and was prepared in accordance with customary industry practices;
other than normal production of the reserves and intervening spot
market product price fluctuations described in the Prospectus,
neither the Company nor its subsidiaries is aware of any facts or
circumstances that would result in an adverse change in the
reserves, or the present value of future net cash flows therefrom,
as described in the Prospectus and as reflected in the Reserve
Report Letter, that would reasonably be expected to result in a
Material Adverse Effect; estimates of such reserves and present
values as described in the Prospectus and reflected in the Reserve
Report Letter comply in all material respects with the applicable
requireme
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