RUBICON MASTER FUND c/o Rubicon Fund Management, LLP 103 Mount Street London W1K2TJ England
Exhibit
10.21
RUBICON MASTER FUND
c/o Rubicon Fund Management, LLP
000 Xxxxx Xxxxxx
Xxxxxx X0X0XX Xxxxxxx
c/o Rubicon Fund Management, LLP
000 Xxxxx Xxxxxx
Xxxxxx X0X0XX Xxxxxxx
, 2006
Aurora Oil & Gas Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Reference is hereby made to (i) that certain Underwriting Agreement, dated as of
, 2006 (the “Underwriting Agreement”), among Aurora Oil & Gas Corporation, a Utah
corporation (the “Company”), Rubicon Master Fund, a company organized under the laws of the Cayman
Islands (the “Selling Stockholder”), Xxxxxxx Xxxx & Company L.L.C., KeyBanc Capital Markets, a
Division of XxXxxxxx Investments and Xxxxxx Xxxxxx & Company, Inc., as representatives for the
several Underwriters (as defined in the Underwriting Agreement) (the “Representatives”), (ii) that
certain Securities Purchase Agreement, dated as of January 31, 2005, among Aurora Energy, Ltd, a
Nevada company (“Old Aurora”) and the Selling Stockholder (the “Aurora Securities Purchase
Agreement”) and (iii) that certain Securities Purchase Agreement, dated as of January 31, 2005,
among Cadence Resources Corporation, a Utah corporation (“Old Cadence”) and the Selling Stockholder
(the “Cadence Securities Purchase Agreement”). After the closing of the transactions contemplated
by the Aurora Securities Purchase Agreement and the Cadence Securities Purchase Agreement, Old
Aurora and Old Cadence merged, with the Company as their legal successor for all purposes
thereunder.
Pursuant to the Underwriting Agreement, the Selling Stockholder proposes to sell to the
Underwriters certain shares of common stock (the “Secondary Shares”), par value $.01 per share (the
“Shares”), of the Company, which the Selling Stockholder acquired from Old Aurora pursuant to the
Aurora Securities Purchase Agreement and Old Cadence pursuant to the Cadence Securities Purchase
Agreement and which are proposed to be sold in a public offering under the Registration Statement
(as defined in the Underwriting Agreement) and the related Prospectus (as defined in the
Underwriting Agreement). The Company and the Selling Stockholder hereby agree that the
indemnification obligations of the Company (as successor to Old Aurora) pursuant to Section 6.4(a)
of the Aurora Securities Purchase Agreement and the indemnification obligations of the Company (as
successor to Old Cadence) pursuant to Section 6.4(a) of the Cadence Securities Purchase Agreement
shall apply to the sale of the Secondary Shares under the Registration Statement (as defined in the
Underwriting Agreement) and the Prospectus, and such provisions shall be deemed incorporated
herein, in their entirety, mutatis mutandis.
Notwithstanding the foregoing, to the extent that the Company does not have sufficient cash
assets to promptly pay both (X) any indemnification obligations (the “Underwriter Indemnified
Liabilities”) of the Company to the Underwriters (including, without limitation, its officers and
employees, and each person, if any, who controls any Underwriter within the meaning of the
Securities Act (as defined in the Underwriting Agreement) and the Exchange Act (as defined in the
Underwriting Agreement), in each case, entitled to indemnification pursuant to the Underwriting
Agreement, the “Underwriter Indemnified Parties”) pursuant to the Underwriting Agreement and (Y)
the foregoing indemnification obligations (the “Selling Stockholder Indemnified Liabilities”) to
the Selling Stockholder (including, the officers, directors, partners, members, agents, brokers
(other than the Underwriters), investment advisors and employees of each of them, each Person (as
defined in the Aurora Securities Purchase Agreement) who controls the Selling Stockholder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, partners, members, agents and employees of each such controlling Person, in
each case entitled to indemnification in accordance with the Aurora Securities Purchase Agreement
and the Cadence Securities Purchase Agreement (the “Selling Stockholder Indemnified Parties”, and
together with the Underwriter Indemnified Parties, the “Indemnified Parties”), then the Selling
Stockholder and the Company hereby agree that any payment of such indemnification obligations shall
be made to the Indemnified Parties as follows: (a) with respect to the Selling Stockholder
Indemnified Parties, in the aggregate, in such amounts equal to the lesser of (I) the aggregate
outstanding Selling Stockholder Indemnified Liabilities at such time and (II) the product of (i)
the aggregate amount available to be paid by the Company to all Indemnified Parties at such time
and (ii) the quotient of (x) the number of Secondary Shares and (y) the number of Offered Shares
(as defined in the Underwriting Agreement) and (b) with respect to the Underwriter Indemnified
Parties, in the aggregate, in such amounts equal to the lesser of (I) the aggregate outstanding
Underwriter Indemnified Liabilities at such time and (II) the product of (i) the aggregate amount
available to be paid by the Company to all Indemnified Parties at such time and (ii) the quotient
of (x) the difference of (I) the number of Offered Shares and (II) the number of Secondary Shares
and (y) the number of Offered Shares; provided, however, that after either all outstanding Selling
Stockholder Indemnified Liabilities or Underwriter Indemnified Liabilities have been paid in full,
all additional payments by the Company with respect to Selling Stockholder Indemnified Liabilities
or Underwriter Indemnified Liabilities, as applicable, that remain outstanding thereafter shall be
paid to such other Indemnified Parties without regard to this paragraph until the earlier to occur
of (A) the date such other Indemnified Parties have been paid in full or (B) such date as such
Indemnified Parties that were previously paid in full are entitled to additional indemnification
from the Company in accordance with this Agreement, the Underwriting Agreement, the Cadence
Securities Purchase Agreement and/or the Aurora Securities Purchase Agreement, as applicable.
Except as expressly provided herein, neither the execution, delivery and effectiveness of this
letter agreement, nor the interpretation or effectiveness of any term or condition contained
herein, including, without limitation, the preceding sentence, shall operate as an amendment or
waiver or reduction of any right, power or remedy of the Underwriter Indemnified Parties or the
Stockholder Indemnified Parties against or with respect to the Company under the Underwriting
Agreement, the Cadence Securities Purchase Agreement, the Aurora Securities Purchase Agreement or
any document or certificate related thereto, nor shall constitute a waiver, amendment or reduction
of any provision of any such documents or certificates or any indemnification obligations of the Company to any
Indemnified Party.
Each of the parties represents and warrants that it is duly authorized to enter into this
agreement. This letter agreement shall be binding on your successors and permitted assigns. This
letter agreement is personal to the parties and may not be assigned or transferred by either party
without the prior written consent of the other party.
This letter agreement shall be governed by and construed in accordance with the internal laws
of the State of New York, without giving effect to the principles of conflict of laws thereof.
Each of the parties hereto hereby irrevocably and unconditionally submits, for itself, to the
exclusive jurisdiction of any New York State court or Federal court of the United States of America
sitting in the State of New York and the county of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this letter agreement or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees to institute any and all claims in respect of this letter agreement or any
related agreement to a New York State court or, to the extent permitted by law, in such Federal
court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each of the parties hereto irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
letter agreement or any related agreement in any New York State or Federal court. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
If any provision of this letter agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions of this Agreement
shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a
valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing,
shall incorporate such substitute provision in this letter agreement.
To the extent that the Company makes a payment or payments to the Selling Stockholder
hereunder or the Selling Stockholder enforces or exercises its rights hereunder or thereunder, and
such payment or payments or the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from,
disgorged by or are required to be refunded, repaid or otherwise restored to the Company by a
trustee, receiver or any other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such enforcement or
setoff had not occurred.
The parties acknowledge and agree that each of the Representatives is an express and intended
third party beneficiary of this Agreement, with the right to enforce the terms hereof.
This letter agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page were an original
thereof.
[The Remainder of this Page Intentionally Left Blank]
Very truly yours,
| RUBICON MASTER FUND |
||||
| By: | ||||
| Name: | Xxxxx XxXxxx | |||
| Title: | Director | |||
Agreed to and Accepted by:
AURORA OIL & GAS CORPORATION
By:
|
||||
| Name: Xxxxxxx X. Xxxxxx | ||||
| Title: President |
