Exhibit 10.1


 


SUBSCRIPTION
AGREEMENT


 


Kodiak Oil & Gas
Corp.


1625 Broadway, Suite 250


Denver, Colorado 80202


 


Gentlemen:


 


The undersigned (the “Investor”) hereby confirms its agreement
with you as follows:


 


1.
This Subscription Agreement (this “Agreement”) is made as of the date set forth below between
Kodiak Oil & Gas Corp, a Yukon Territory corporation (the “Company”), and the Investor.


 


2.
The Company has authorized the sale and issuance to certain
investors of up to an aggregate of 10,000,000 shares (the “Shares”) of its Common Stock, no par value
(the “Common Stock”), subject to
adjustment by the Company’s Board of Directors, or a committee thereof, for a
purchase price of $[  ] per share (the “Purchase Price”).


 


3.
The offering and sale of the Shares (the “Offering”) are being made pursuant to (1) an
effective Registration Statement on Form S-3 (including the Prospectus
contained therein (the “Base Prospectus”),
the “Registration Statement”)
filed by the Company with the Securities and Exchange Commission (the “Commission”) on July 14, 2008, (2) if
applicable, certain “free writing prospectuses” (as that term is defined in Rule 405
under the Securities Act of 1933, as amended), that have or will be filed with
the Commission and delivered to the Investor on or prior to the date hereof,
and (3) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”) containing certain
supplemental information regarding the Shares and terms of the Offering that
will be filed with the Commission and delivered to the Investor (or made
available to the Investor by the filing by the Company of an electronic version
thereof with the Commission).


 


4.
The Company and the Investor agree that the Investor will
purchase from the Company and the Company will issue and sell to the Investor
the Shares set forth below for the aggregate purchase price set forth below.
The Shares shall be purchased pursuant to the Terms and Conditions for Purchase
of Shares attached hereto as Annex I and incorporated herein by this
reference as if fully set forth herein. The Investor acknowledges that the
Offering is not being underwritten by an underwriter and that there is no
minimum offering amount.


 


5.
The manner of settlement of the Shares purchased by the
Investor shall be as follows:


 


DELIVERY BY ELECTRONIC
BOOK-ENTRY AT THE DEPOSITORY TRUST COMPANY (“DTC”),
REGISTERED IN THE INVESTOR’S NAME AND ADDRESS AS SET FORTH BELOW, AND RELEASED
BY COMPUTERSHARE INVESTOR SERVICES INC (“COMPUTERSHARE”),
THE COMPANY’S TRANSFER AGENT (THE “TRANSFER
AGENT”), TO THE INVESTOR AT THE CLOSING (AS DEFINED IN SECTION 3.1
OF ANNEX I HERETO).


 


NO LATER
THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE
INVESTOR AND THE COMPANY, THE INVESTOR SHALL DIRECT THE BROKER-DEALER AT WHICH
THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP
A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE
SHARES.


 


IMMEDIATELY
UPON CLOSING THE INVESTOR SHALL REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS
EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE
INVESTOR TO THE FOLLOWING ACCOUNT:


 

















 


BANK OF THE WEST, N.A.


 


ABA
Number: 121100782


 


Account
Name: Kodiak Oil & Gas Corp.


 


Account
Number: 339001083


 


Ref:
Kodiak Registered Direct Offering


 


Attn:
Alfredo Benavente


 


Tel:
303-260-7269


 


IT IS
THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER IN A
TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE
SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER,
THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR
MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.


 


6.
The Investor represents that, except as set forth below, (a) it
has had no position, office or other material relationship within the past
three years with the Company or persons known to it to be affiliates of the
Company, (b) it is not a NASD member or an Associated Person (as such term
is defined under the NASD Membership and Registration Rules Section 1011)
as of the Closing, and (c) neither the Investor nor any group of Investors
(as identified in a public filing made with the Commission) of which the
Investor is a part in connection with the Offering of the Shares, acquired, or
obtained the right to acquire, 20% or more of the Common Stock (or securities
convertible into or exercisable for Common Stock) or the voting power of the
Company on a post-transaction basis. Exceptions:


 


 


(If no exceptions,
write “none.” If left blank, response will be deemed to be “none.”)


 


7.
The Investor
represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the
Base Prospectus, dated July 14, 2008, which is a part of the Company’s
Registration Statement and the documents incorporated by reference therein
(collectively, the “Disclosure Package”) prior to or in connection with the
receipt of this Agreement.


 


8. No offer by the Investor to buy Shares will be accepted and no part of
the Purchase Price will be delivered to the Company until the Company has
accepted such offer by countersigning a copy of this Agreement, and any such
offer may be withdrawn or revoked by the Investor, without obligation or
commitment of any kind, at any time prior to the Company sending (orally, in
writing, or by electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or commitment of any kind
until this Agreement is accepted and countersigned by or on behalf of the
Company.


 


	
  Number
  of Shares:

  	
   

  	
   

  	
   

  
	
  Purchase Price
  Per Share:

  	
   

  	
  $

  	
  [
  ]

  	
   

  
	
  Aggregate
  Purchase Price:

  	
   

  	
  $

  	
   

  	
   

  



 


2

















 


Please confirm that the
foregoing correctly sets forth the agreement between us by signing in the space
provided below for that purpose.


 


	
   

  	
   

  	
  Dated as of:

  May [ ], 

  2009

  	
   

  
	
   

  	
   

  	
  INVESTOR

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  



 


Agreed and Accepted


 


this [ ]th day of May, 2009:


 


	
   

  	
   

  	
  KODIAK OIL

  & GAS CORP

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name: Lynn A. Peterson

  	
   

  	
   

  	
   

  
	
  Title: President and
  CEO

  	
   

  	
   

  	
   

  



 


3

















 


ANNEX
I


 


TERMS
AND CONDITIONS FOR PURCHASE OF SHARES


 


	
  1.

  	
  Authorization
  and Sale of the Shares

  



 


Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of the
Shares.


 


	
  2.

  	
  Agreement to Sell and Purchase
  the Shares.

  



 


2.1
At the Closing, the Company will sell to the Investor, and
the Investor will purchase from the Company, upon the terms and conditions set
forth herein, the number of Shares set forth on the last page of the
Agreement to which these Terms and Conditions for Purchase of Shares are
attached as Annex I (the “Signature
Page”) for the aggregate purchase price therefor set forth on the
Signature Page.


 


2.2
The Company proposes to enter into substantially this same
form of Subscription Agreement with certain other investors (the “Other Investors”) and expects to complete
sales of Shares to them. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the “Investors,”
and this Agreement and the Subscription Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the “Agreements.”


 


	
  3.

  	
  Closings and Delivery of the
  Shares and Funds. 

  



 


3.1
Closing. The completion of the purchase and sale of the
Shares (the “Closing”) shall
occur at a place and time (the “Closing Date”)
to be specified by the Company, and of which the Investors will be notified in
advance by the Company. At the Closing, (a) the Company shall cause the
Transfer Agent to deliver to the Investor the number of Shares set forth on the
Signature Page registered in the name of the Investor or, if so indicated
on the Investor Questionnaire attached hereto as Exhibit A, in the
name of a nominee designated by the Investor and (b) the aggregate
purchase price for the Shares being purchased by the Investor will be delivered
by or on behalf of the Investor to the Company.


 


3.2
Conditions to the Company’s Obligations. (a) The Company’s
obligation to issue and sell the Shares to the Investor shall be subject to: (i) the
receipt by the Company of the purchase price for the Shares being purchased
hereunder as set forth on the Signature Page; (ii) the Company obtaining
NYSE Amex LLC approval for the listing of the Shares; and (iii) the
accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to the
Closing Date.


 


3.3
Delivery of Funds. Immediately
at the time of Closing,  the Investor
shall remit by wire transfer the amount of funds equal to the aggregate
purchase price for the Shares being purchased by the Investor to the following
account designated by the Company:


 


 


BANK OF THE WEST, N.A. 


 


ABA
Number: 121100782


 


Account
Name: Kodiak Oil & Gas Corp.


 


Account
Number: 339001083


 


Ref:
Kodiak Registered Direct Offering


 


Attn:
Alfredo Benavente


 


Tel:
303-260-7269


 


4

















 


3.4
Delivery of Shares. No
later than one (1) business day after the execution of this agreement by
the Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with the Shares
being purchased by such Investor are maintained, which broker/dealer shall be a
DTC participant, to set up a Deposit/Withdrawal at Custodian (“DWAC”) instructing Computershare Investor
Services Inc., the Company’s transfer agent, to credit such account or accounts
with the Shares by means of an electronic book-entry delivery. Such DWAC shall
indicate the settlement date for the deposit of the Shares, which date shall be
provided to the Investor by the Company. Simultaneously with the delivery to
the Company by the Investors of the funds pursuant to Section 3.3
above, the Company shall direct its transfer agent to credit the Investor’s
account or accounts with the Shares pursuant to the information contained in
the DWAC.


 


	
  4.

  	
  Representations, Warranties and
  Covenants of the Investor. 

  



 


The Investor represents
and warrants to, and agrees with, the Company that:


 


4.1
The Investor (a) is knowledgeable, sophisticated and
experienced in making, and is qualified to make decisions with respect to,
investments in shares presenting an investment decision like that involved in
the purchase of the Shares, including investments in securities issued by the
Company and investments in comparable companies, (b) has answered all
questions on the Signature Page and the Investor Questionnaire for use in
preparation of the Prospectus Supplement and the answers thereto are true and
correct as of the date hereof and will be true and correct as of the Closing
Date and (c) in connection with its decision to purchase the number of
Shares set forth on the Signature Page, has received and is relying solely upon
the Disclosure Package and the documents incorporated by reference therein.


 


4.2
The Investor acknowledges
that (a) no action has been or will be taken in any jurisdiction outside
the United States by the Company that would permit an offering of the
Shares, or possession or distribution of offering materials in connection with
the issue of the Shares in any jurisdiction outside the United States where
action for that purpose is required and (b) if the Investor is outside the
United States, it will comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers Shares or
has in its possession or distributes any offering material, in all cases at its
own expense.


 


4.3
(a) The Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (b) this
Agreement constitutes a valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as to the enforceability of any rights to
indemnification or contribution that may be violative of the public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation).


 


4.4
The Investor understands that nothing in this Agreement, the
Prospectus or any other materials presented to the Investor in connection with
the purchase and sale of the Shares constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection
with its purchase of Shares.


 


4.5
Since the date on which the Company first contacted such
Investor about the Offering, it has not engaged in any transactions in the
securities of the Company (including, without limitation, any Short Sales (as
defined below) involving the Company’s securities). Each Investor covenants
that it will not engage in any transactions in the securities of the Company
(including Short Sales) prior to the time that the transactions contemplated by
this Agreement are publicly disclosed. Each Investor agrees that it will not
use any of the Shares acquired pursuant to this Agreement to cover any short
position in the Common Stock if doing so would be in violation of applicable
securities laws. For purposes hereof, “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not against the
box, and all types of direct and indirect stock pledges, forward sales
contracts, options, puts, calls, short sales, swaps, “put equivalent positions”
(as defined in Rule 16a-1(h) under the Exchange Act) and similar
arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated brokers.


 


5

















 


	
  5.

  	
  Survival
  of Representations, Warranties and Agreements; Third Party Beneficiary.

  



 


Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the Investor herein will
survive the execution of this Agreement, the delivery to the Investor of the
Shares being purchased and the payment therefor.


 


	
  6.

  	
  Notices.

  



 


All
notices, requests, consents and other communications hereunder will be
in writing, will be mailed (a) if within the domestic United States by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, or by facsimile or (b) if delivered from
outside the United States, by International Federal Express or facsimile, and
will be deemed given (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if
delivered by nationally recognized overnight carrier, one business day after so
mailed, (iii) if delivered by International Federal Express, two business
days after so mailed and (iv) if delivered by facsimile, upon electric
confirmation of receipt and will be delivered and addressed as follows:


 


if to the Company, to:


 


Kodiak
Oil & Gas Corp.


 


1625 Broadway, Suite 250


 


Denver,
CO 80202


 


Attention:
James Doss, Chief Financial Officer


 


Facsimile:
(303) 592-8071  


 


With
copies to:


 


Dorsey &
Whitney LLP


 


U.S.
Bank Centre


 


1420
5th Ave Suite 3400


 


Seattle,
WA 98101


 


Attention:
Randal R. Jones


 


Facsimile:
(206) 903-8820


 


if to the Investor, at
its address on the Signature Page hereto, or at such other address or
addresses as may have been furnished to the Company in writing.


 


	
  7.

  	
  Changes.

  



 


This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by the
Company and the Investor.


 


	
  8.

  	
  Headings.

  



 


The headings of the
various sections of this Agreement have been inserted for convenience of
reference only and will not be deemed to be part of this Agreement.


 


	
  9.

  	
  Severability.

  



 


In case any provision
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.


 


6

















 


	
  10.

  	
  Governing
  Law.

  



 


This Agreement will be
governed by, and construed in accordance with, the internal laws of the State
of Colorado, without giving effect to the principles of conflicts of law that
would require the application of the laws of any other jurisdiction.


 


	
  11.

  	
  Counterparts.

  



 


This Agreement may be
executed in two or more counterparts, each of which will constitute an
original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties. The Company and
the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Prospectus Supplement (or the filing
by the Company of an electronic version thereof with the Commission).


 


	
  12.

  	
  Confirmation
  of Sale.

  



 


The Investor acknowledges
and agrees that such Investor’s receipt of the Company’s counterpart to this
Agreement, together with the Prospectus Supplement (or the filing by the
Company of an electronic version thereof with the Commission), shall constitute
written confirmation of the Company’s sale of Shares to such Investor.


 


	
  13.

  	
  Press
  Release.

  



 


The Company and the
Investor agree that the Company shall issue a press release announcing the
Offering prior to the opening of the financial markets in New York City on the
business day immediately after the date hereof.


 


7

















 


Exhibit A


KODIAK
OIL AND GAS CORP.


INVESTOR
QUESTIONNAIRE


 


Pursuant to Section 3
of Annex I to the Agreement, please provide us with the following
information:


 


	
  1.

  	
   

  	
  The exact name that
  your Shares are to be registered in. You may use a nominee name if
  appropriate:

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  The relationship
  between the Investor and the registered holder listed in response to item 1
  above:

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The mailing address of
  the registered holder listed in response to item 1 above:

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The Social Security
  Number or Tax Identification Number of the registered holder listed in the
  response to item 1 above:

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Name of DTC Participant
  (broker-dealer at which the account or accounts to be credited with the
  Shares are maintained):

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  DTC Participant Number:

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Name of Account at DTC
  Participant being credited with the Shares:

  	
   

  	
                  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Account Number at DTC
  Participant being credited with the Shares:

  	
   

  	
                  

  	
   

  



 


8