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Exhibit 1.4
Execution
Copy
$2,000,000,000
XTO ENERGY
INC.
$400,000,000 4.625% Senior
Notes due 2013
$800,000,000 5.500% Senior
Notes due 2018
$800,000,000 6.375% Senior
Notes due 2038
UNDERWRITING
AGREEMENT
April 15,
2008
L EHMAN B
ROTHERS I NC .
C ITIGROUP G
LOBAL M ARKETS I NC
.
M ERRILL L
YNCH & C O .
as Representatives of the
Underwriters
set forth on Schedule I
hereto
c/o Lehman Brothers
Inc.
745 Seventh Avenue
New York, New York
10019
Ladies and Gentlemen:
XTO Energy Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell $400,000,000 aggregate principal amount of its 4.625%
Senior Notes due 2013 (the “ 2013 Notes ”),
$800,000,000 aggregate principal amount of its 5.500% Senior Notes
due 2018 (the “ 2018 Notes ”) and $800,000,000
aggregate principal amount of its 6.375% Senior Notes due 2038 (the
“ 2038 Notes ”) (collectively, the 2013 Notes,
2018 Notes and the 2038 Notes are herein referred to as the “
Notes ”) to you (the “ Underwriters
”). The Notes will be issued pursuant to an Indenture dated
as of July 19, 2007, as amended and supplemented to date, and
as further amended and supplemented by a Second Supplemental
Indenture to be dated on or before the Delivery Date (as defined in
Section 4), (collectively, the “ Indenture
”) between the Company and The Bank of New York Trust
Company, N.A., as Trustee (the “ Trustee ”).
This agreement (this “ Agreement ”) is to
confirm the agreement concerning the purchase of the Notes from the
Company by the Underwriters.
Section 1.
Representations, Warranties and Agreements of the Company . The
Company represents, warrants and agrees that:
(a) A registration statement
on Form S-3 relating to the Notes (File No. 333-135136)
(i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the “
Securities Act ”), and the rules and
regulations
(the “ Rules and
Regulations ”) of the Securities and Exchange Commission
(the “ Commission ”) thereunder; (ii) has
been filed with the Commission under the Securities Act; and
(iii) upon its filing with the Commission automatically became
and is effective under the Securities Act. Copies of such
registration statement, any amendment thereto and any supplement to
the prospectus included therein have been delivered by the Company
to you as the representatives (the “ Representatives
”) of the Underwriters; and no other document relating to the
Notes with respect to such registration statement or any such
document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission. As used in
this Agreement:
(i) “ Applicable
Time ” means 5:30 p.m. (New York City time) on the date
of this Agreement;
(ii) “ Base
Prospectus ” means the base prospectus filed as part of
the Registration Statement, in the form in which it has most
recently been amended on or prior to the date hereof, relating to
the Notes;
(iii) “ Effective
Date ” means any date as of which any part of such
registration statement relating to the Notes became, or is deemed
to have become, effective under the Securities Act in accordance
with the Rules and Regulations;
(iv) “ Final Term
Sheet ” means the term sheet prepared pursuant to
Section 5(a) of the Agreement and substantially in the form
attached in Schedule III hereto;
(v) “ Issuer Free
Writing Prospectus ” means each “ free writing
prospectus ” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Notes, including the Final Term Sheet;
(vi) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Notes included in such registration statement, including the
Base Prospectus, or filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, including any preliminary
prospectus supplement thereto relating to the Notes, and provided
to the Representatives for use by the Underwriters;
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(vii) “ Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time and identified on Schedule II, other than a road
show that is an Issuer Free Writing Prospectus under Rule 433 of
the Rules and Regulations;
(viii) “
Prospectus ” means the final prospectus relating to
the Notes, including the Base Prospectus and any final prospectus
supplement thereto relating to the Notes, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations and
provided to the Representatives for use by the Underwriters;
and
(ix) “ Registration
Statement ” means, collectively, the various parts of
such registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. Any
reference to the “ most recent Preliminary Prospectus
” shall be deemed to refer to the latest Preliminary
Prospectus included in the Registration Statement or filed pursuant
to Rule 424(b) prior to or on the date hereof (including, for
purposes hereof, any documents incorporated by reference therein
prior to or on the date hereof). Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated
by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report
of the Company on Form 10-K filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective
Date that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus, or of any document
incorporated by reference in the most recent Preliminary Prospectus
or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such
purpose has been instituted or threatened by the Commission. The
Commission has not notified the Company of any objection to the use
of the form of the Registration Statement.
(b) The Company has been
since the time of initial filing of the Registration Statement and
continues to be a “well-known seasoned issuer” (as
defined in Rule 405) eligible to use Form S-3 for the offering
of the Notes, including not having been an “ineligible
issuer” (as defined in Rule 405) at any such time or date.
The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405) and was
filed not earlier than the date that is three years prior to the
Delivery Date.
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(c) The Registration
Statement conformed and will conform in all material respects on
the Effective Date and on the Delivery Date, 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
Securities Act and the Rules and Regulations. The most recent
Preliminary Prospectus conforms on the date hereof, and the
Prospectus and any amendment or supplement thereto will conform, in
all material respects when filed with the Commission pursuant to
Rule 424(b) and on the Delivery Date to the requirements of the
Securities Act and the Rules and Regulations.
(d) The Disclosure Package
did not, as of the Applicable Time, contain an untrue statement of
a material fact or omit to state a material fact 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 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, which information is specified
in Section 9(e).
(e) 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 Disclosure Package as of the Applicable Time, 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. Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433) does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated by
reference therein that has not been superseded or modified, or the
Disclosure Package.
(f) Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433) conformed or will conform
in all material respects to the requirements of the Securities Act
and the Rules and Regulations on the date of first use, and the
Company has complied with any filing requirements applicable to
such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Company has not made any offer relating to the
Notes that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives. The
Company has retained, and will retain, in accordance with the Rules
and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and
Regulations.
(g) The Registration
Statement did not, as of the Effective Date, and the Prospectus
will not, as of its date and on the Delivery 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 or 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, which information
is specified in Section 9(e).
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(h) The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated
will conform, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations of the Commission
thereunder. None of such documents, when filed with the Commission,
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 light of the circumstances under which
they were made, not misleading.
(i) Neither the Company nor
any of its subsidiaries has sustained, since the date of the latest
audited financial statements included in the Preliminary
Prospectus, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Preliminary Prospectus or Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Preliminary Prospectus, there has
not been any change in the long-term debt of the Company or any of
its subsidiaries, other than changes to indebtedness outstanding
under the Company’s Term Loan Agreement dated
November 10, 2004, as amended, between the Company and Bank of
America, as Administrative Agent, and the other lenders, the
Company’s Term Loan Agreement dated February 5, 2008,
between the Company and The Royal Bank of Scotland Finance
(Ireland), the Company’s Amended and Restated 5-Year
Revolving Credit Agreement dated April 1, 2005 between the
Company and certain commercial banks named therein, as amended to
date, and the Company’s commercial paper program, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Preliminary
Prospectus.
(j) (1) The Company has good
and defensible title to all real property, free and clear of all
liens, encumbrances and defects, except (A) royalties,
overriding royalties and other burdens under oil and gas leases,
(B) easements, restrictions, rights-of-way and other matters
that commonly affect property, (C) liens securing taxes and
other governmental charges, or claims of materialmen, mechanics and
similar persons, not yet due and payable, (D) liens and
encumbrances under operating agreements, farmout agreements,
unitization, pooling and commutation agreements, declarations and
orders, and gas sales contracts, securing payment of amounts not
yet due and payable and of a scope and nature customary in the oil
and gas industry and (E) liens, encumbrances and defects that
do not in the aggregate materially affect the value of the real
property or materially interfere with the use made or proposed to
be made of such real property by the Company; and (2) the
working interests in oil, gas and mineral leases or mineral
interests which constitute a portion of the real property held by
the Company reflect in all material respects the right of the
Company to explore or receive production from such real property,
and the care taken by the Company and its subsidiaries with respect
to acquiring
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or otherwise procuring such leases or
mineral interests was generally consistent with standard industry
practices for acquiring or procuring leases and interests therein
to explore for hydrocarbons.
(k) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of Delaware, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, and has all
power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged; and none of the
subsidiaries of the Company is a significant subsidiary, as such
term is defined in Rule 405 of the Rules and
Regulations.
(l) The Company has an
authorized capitalization as set forth in the most recent
Preliminary Prospectus and the Prospectus. All of the issued shares
of capital stock of the Company have been duly and validly
authorized and issued, were issued in compliance with federal and
state securities laws, are fully paid and non-assessable and
conform, or will conform, to the description thereof contained in
the Registration Statement, the most recent Preliminary Prospectus
and the Prospectus. All of the Company’s options, warrants
and other rights to purchase or exchange any securities for shares
of the Company’s capital stock have been duly and validly
authorized and issued, were issued in compliance with federal and
state securities laws, and conform, or will conform, to the
description thereof contained in the Registration Statement, the
most recent Preliminary Prospectus and the Prospectus. All of the
issued shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims,
except for such liens, encumbrances, equities or claims as could
not, in the aggregate, reasonably be expected to have a material
adverse effect.
(m) Neither (i) the
execution or delivery hereof by the Company, nor (ii) the
consummation of the transactions contemplated hereby, nor
(iii) the execution and delivery of the Indenture and the
Notes by the Company, nor (iv) the application of the proceeds
from the sale of the Notes as described under “Use of
Proceeds” in the most recent Preliminary Prospectus, nor
(v) compliance by the Company with all of the provisions of
this Agreement, the Indenture and the Notes, will (A) conflict
with or result in a breach or violation of, or constitute a default
under, the certificate of incorporation, by-laws, partnership
agreement or other governing documents of the Company or any of its
subsidiaries, or any material agreement, indenture or other
instrument to which the Company or any of its subsidiaries is a
party or by which any of them is bound, or to which any of their
properties is subject or (B) violate any law, rule,
administrative regulation or decree of any court, or any
governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties or assets,
or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of the Company or any of
its subsidiaries, which in any such event described in this
subclause (B) would have a material adverse effect on the
Company. Except for (i) the registration of the Notes under
the Securities Act, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act
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and applicable state securities laws in
connection with the purchase and sale of the Notes by the
Underwriters and such permits, consents, approvals and similar
authorizations required under the securities or “Blue
Sky” laws of certain jurisdictions, and (iii) such
permits, consents, approvals and authorizations which have been
obtained, no permit, consent, approval, authorization or order of,
or filing or registration with, any court, governmental agency or
body or financial institution is required in connection with the
consummation of the transactions contemplated by this
Agreement.
(n) Neither the Company nor
any of its subsidiaries is in violation of its certificate of
incorporation or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or any other agreement or instrument to which it
is a party or by which it or any of its properties is
bound.
(o) The Company has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has
been duly authorized, executed and delivered by the
Company.
(p) The Notes will rank
pari passu with all existing and future unsecured and
unsubordinated indebtedness of the Company.
(q) The Indenture has been
duly and validly authorized, and, on or prior to the Delivery Date,
will be executed and delivered by the Company and will be a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws relating to or affecting creditors’ rights
generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity
or at law). The Indenture (i) is duly qualified under the
Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), (ii) complies as to form with the requirements of
the Trust Indenture Act and (iii) conforms, or will conform,
to the description thereof in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
(r) The Notes have been duly
and validly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement and, when executed by the
Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will have been
validly issued and delivered, free of any preemptive or similar
rights to subscribe to or purchase the same arising by operation of
law or under the charter or by-laws of the Company or otherwise,
and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting the enforcement of creditors’
rights generally and by general equitable principles, and the Notes
conform, or will conform, to the description thereof in the
Registration Statement, the Preliminary Prospectus and the
Prospectus. The Company has all requisite corporate power and
authority to issue, sell and deliver the Notes in accordance with
and upon the terms and
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conditions set forth in this Agreement
and in the Registration Statement, the Preliminary Prospectus and
Prospectus. All corporate action required to be taken by the
Company for the authorization, issuance, sale and delivery of the
Notes to be sold by the Company hereunder has been validly and
sufficiently taken.
(s) The financial statements
(including the related notes and supporting schedules) filed as
part of the Registration Statement or included or incorporated by
reference in the most recent Preliminary Prospectus and the
Prospectus comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and present
fairly the financial condition, results of operations and the cash
flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(t) The Company has not sold
or issued any securities that would be integrated with the offering
of the Notes contemplated by this Agreement pursuant to the
Securities Act, the Rules and Regulations or the interpretations
thereof by the Commission.
(u) KPMG LLP (“
KPMG ”), who have certified certain financial
statements of the Company, whose reports appear in the Preliminary
Prospectus and the Prospectus or are incorporated by reference
therein and who have delivered the initial letter referred to in
Section 8(f) hereof, are independent registered public
accountants within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants and its interpretations and rulings
thereunder.
(v) The Company and each of
its subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of
their respective businesses and the value of their respective
properties as is customary for companies engaged in similar
businesses in similar industries.
(w) The Company and each of
its subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such
rights of others.
(x) Except as described in
the most recent Preliminary Prospectus and the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would have a material adverse effect on the
consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
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(y) No labor disturbance by
the employees of the Company or its subsidiaries exists or, to the
knowledge of the Company, is imminent, which could be reasonably
expected to have a material adverse effect on the general affairs,
management, consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries.
(z) Since the date as of
which information is given in the most recent Preliminary
Prospectus through the date hereof, and except as may otherwise be
disclosed in the most recent Preliminary Prospectus and the
Prospectus, the Company has not (i) issued or granted any
securities other than pursuant to any of its employee benefit
plans, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business or (iii) entered
into any transaction not in the ordinary course of
business.
(aa) The Company
(i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in
accordance with management’s authorization,
(B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s authorization
and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(bb) Neither the Company nor
any of its subsidiaries, nor any director, officer, agent, employee
or other person acting on behalf of the Company or any of its
subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds, (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment. Neither the Company
nor any of its subsidiaries conducts business or has any operations
in any foreign jurisdiction.
(cc) There has been no
storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its
subsidiaries in violation of any laws, regulations, ordinances,
rules, orders, judgments, decrees, permits or other legal
requirements of any governmental authority, including without
limitation any international, national, state, provincial,
regional, or local authority, relating to the protection of human
health or safety, the environment, or natural resources, or to
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”) or which would require
remedial action under any applicable Environmental Laws, except for
any violation or remedial action which would not be reasonably
likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
general affairs, management, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its
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subsidiaries; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes,
solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except
for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the general affairs, management,
consolidated financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries; and the
terms “hazardous wastes,” “toxic wastes,”
“hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable Environmental
Laws; none of the Company or any of its subsidiaries has received
notice of any actual or alleged violation of such Environmental
Laws, or of any potential liability for or other obligation
concerning the presence, disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, which violations
or liabilities could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive
position of the Company and its subsidiaries. Except as described
in the most recent Preliminary Prospectus, (A) there are no
proceedings that are pending, or known to be contemplated, against
the Company or any of its subsidiaries under Environmental Laws in
which a governmental authority is also a party, other than such
proceedings regarding which it is reasonably believed no monetary
sanctions of $100,000 or more will be imposed, (B) the Company
and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws or concerning hazardous or
toxic substances or wastes, pollutants or contaminants, which could
reasonably be expected to have a material effect on the capital
expenditures, earnings or competitive position of the Company and
its subsidiaries, and (C) none of the Company and its
subsidiaries anticipates material capital expenditures relating to
Environmental Laws.
(dd) The Company is not, and
after giving effect to the offer and sale of the Notes and the
application of the proceeds therefrom as described under “Use
of Proceeds” in the most recent Preliminary Prospectus and
the Prospectus will not be, an investment company as defined in the
Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(ee) The information supplied
by the Company to its independent petroleum engineering consultants
for purposes of preparing the reserve reports used to calculate
estimates of reserves of the Company included in the Registration
Statement, Preliminary Prospectus and Prospectus, including,
without limitation, production, costs of operation and development,
current prices for production, agreements relating to current and
future operations and sales of production, was true and correct in
all material respects on the date supplied and was prepared in
accordance with customary industry practices; Miller and Lents,
Ltd., independent consulting petroleum engineers, who prepared
estimates of the extent and value of proved oil and natural gas
reserves, are independent with respect to the Company.
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(ff) The Company has not
taken and will not take, directly or indirectly, any action which
is designed to or which has constituted or which would reasonably
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Notes.
(gg) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right (other than rights which have been
waived or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act (other than (i) the
Registration Rights Agreement dated May 11, 1993 by and
between the Company and certain stockholders (the “ 1993
Registration Rights Agreement ”) under which all
registrable securities are eligible for trading pursuant to Rule
144 under the Securities Act, (ii) the Registration Rights
Agreement dated April 1, 2005 by and between the Company and
former stockholders of Antero Resources Corporation) and
(iii) the Registration Rights Agreement dated June 30,
2006 by and between the Company and former securityholders of Peak
Energy Resources, Inc.).
(hh) There are no contracts
or other documents which are required by the Rules and Regulations
to be described in the most recent Preliminary Prospectus and
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described in such Preliminary Prospectus and Prospectus or
filed as exhibits to the Registration Statement.
(ii) No relationship, direct
or indirect, exists between or among the Company on the one hand,
and the directors, officers, stockholders, customers or suppliers
of the Company on the other hand, which is required by the Rules
and Regulations to be described in the most recent Preliminary
Prospectus and Prospectus which is not so described.
(jj) The Company has filed
all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
due thereon, and no tax deficiency has been determined adversely to
the Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any asserted tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
would have) a material adverse effect on the consolidated financial
position, stockholders’ equity, results of operations,
business or prospects of the Company and its
subsidiaries.
(kk) There is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with
the provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith.
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(ll) The Company has not
received any written comments from the Commission staff in
connection with the Company’s reports under the Exchange Act
that remain unresolved.
(mm) The Company has not
distributed and, prior to the later to occur of the Delivery Date
and completion of the distribution of the Notes, will not
distribute any offering material in connection with the offering
and sale of the Notes other than any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with Section 1(f)
or 5(g).
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Notes shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
Section 2. Purchase
of the Notes by the Underwriters . On the basis of the
representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to
issue and sell to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company, at a price equal to 99.288% of the principal amount of
the 2013 Notes, at a price equal to 98.889% of the principal amount
of the 2018 Notes, and at a price equal to 98.989% of the principal
amount of the 2038 Notes, in each case plus accrued interest, if
any, from the Delivery Date, the principal amount of each of the
2013 Notes, 2018 Notes and 2038 Notes set forth opposite that
Underwriter’s name in Schedule I hereto.
Section 3. Offering
of Notes by the Underwriters . Upon authorization by the
Company of the release of the Notes, the several Underwriters
propose to offer the Notes for sale upon the terms and conditions
set forth in the Prospectus.
Section 4. Delivery
of and Payment for the Notes . Delivery of and payment for the
Notes shall be made at the offices of Kelly, Hart &
Hallman LLP, Fort Worth, Texas at 10:00 A.M., New York City time,
on April 18, 2008, or at such other date or place as shall be
determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the
“ Delivery Date .” On the Delivery Date, the
Company shall deliver or cause to be delivered the Notes to the
Representatives for the account of each Underwriter against payment
by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Notes being sold by the
Company to or upon the order of the Company of the purchase price
by wire transfer in immediately available funds to the accounts
specified by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter
hereunder.
Section 5. Further
Agreements of the Company . The Company agrees:
(a) To prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission’s close of business on the second
business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration
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Statement or the Prospectus prior to the
Delivery Date except as provided herein; to prepare the Final Term
Sheet, substantially in the form of Schedule III hereto and
approved by the Representatives and file the Final Term Sheet
pursuant to Rule 433(d) of the Rules and Regulations within the
time period prescribed by such Rule; to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment or supplement to the Registration Statement or the
Prospectus has been filed and to furnish the Representatives with
copies thereof; to 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 Notes; to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Preliminary Prospectus,
Prospectus or any Issuer Free Writing Prospectus, of the suspension
of the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding or
examination for any such purpose, of any notice from the Commission
objecting to the use of the form of the Registration Statement or
any post-effective amendment thereto or of any request by the
Commission for the amending or supplementing of the Registration
Statement, Preliminary Prospectus or the Prospectus or any Issuer
Free Writing Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing
or suspending the use of the Preliminary Prospectus, Prospectus or
any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To pay the applicable
Commission filing fees relating to the Notes within the time
required by Rule 456(b)(1) without regard to the proviso
therein;
(c) To furnish promptly to
each of the Representatives and to counsel for the Underwriters
copies of the executed Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed
therewith;
(d) To deliver promptly to
the Representatives such number of the following documents as the
Representatives shall reasonably request: (A) conformed copies
of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings), (B) each Preliminary Prospectus, the Prospectus and
any amended or supplemented Prospectus, (C) each Issuer Free
Writing Prospectus, (D) the Final Term Sheet, and (E) any
document incorporated by reference in any Preliminary Prospectus or
the Prospectus;
(e) During the period in
which the Prospectus relating to the Notes (or in lieu thereof, the
notice referred to in Rule 173(a) of the Rules and Regulations) is
required to be delivered under the Securities Act, to comply with
all requirements imposed upon it by the Securities Act and by the
Rules and Regulations, as from time to time in force, so far as is
necessary to permit the continuance of sales of or dealings in the
Notes as contemplated by the provisions of this Agreement and by
the Prospectus. If during such period any event occurs as a result
of which the Disclosure Package or the Prospectus as then amended
or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it
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is necessary to amend the Registration
Statement or amend or supplement the Disclosure Package or the
Prospectus or file any document to comply with the Securities Act,
the Company will promptly notify the Representatives and will,
subject to Section 5(a) hereof, amend the Registration
Statement, amend or supplement the Disclosure Package or the
Prospectus, as the case may be, or file any document (in each case,
at the expense of the Company) so as to correct such statement or
omission or to effect such compliance, and will furnish without
charge to each Underwriter as many written and electronic copies of
any such amendment or supplement as the Representatives may from
time to time reasonably request;
(f) To file promptly 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 Securities Act
or requested by the Commission;
(g) For so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Notes, prior to filing with the Commission
any amendment or supplement to the Registration Statement or the
Prospectus, any document incorporated by reference in the
Prospectus or any amendment to any document incorporated by
reference in the Prospectus, to furnish a copy thereof to the
Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing, which consent shall
not be unreasonably withheld;
(h) Not to make any offer
relating to the Notes that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Representatives
(which consent being deemed to have been given with respect to
(A) the Final Term Sheet prepared and filed pursuant to
Section 5(a) hereof and (B) any other Issuer Free Writing
Prospectus identified on Schedule II hereto).
(i) To comply with all
applicable requir
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