Exhibit 4.6


 


REGISTRATION RIGHTS AGREEMENT


 


THIS
REGISTRATION RIGHTS AGREEMENT is made and entered into as of April 1, 2005, by and between
Petrohawk Energy Corporation, a Delaware corporation (the “Company”), on the one hand, and each of
the parties identified on Exhibit A (collectively, the “Purchasers”), on
the other hand.


 


W I T N E S S E T H:


 


WHEREAS, PHAWK, LLC, a
Delaware limited liability company (“PHAWK”) and
each of the Purchasers have entered into Stock Purchase Agreements as
identified on Exhibit A (the “Stock Purchase Agreements”), in connection with which PHAWK sold 1,830,000
shares (the “Common Shares”) of
the Company’s common stock, par value $0.001 (the “Common Stock”); and


 


WHEREAS, the Company has agreed to provide the
registration rights provided for in this Agreement (as defined below) for the
holders of Registrable Shares (as defined below); and


 


NOW,
THEREFORE, in
consideration of the premises and the mutual covenants of the parties hereto,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:


 


1.             Definitions.    As used herein, the
following terms shall have the following meanings:


 


”Additional Shares” means shares or other securities issued
in respect of the Common Shares by reason of or in connection with any stock
dividend, stock distribution, stock split or similar issuance.


 


”Agreement” means this Registration Rights Agreement made and
entered into as of April 1, 2005.


 


”Affiliate” means, as to any specified Person, (i) any
Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the specified
Person, (ii) any executive officer, director, trustee or general partner
of the specified Person and (iii) any legal entity for which the specified
Person acts as an executive officer, director, trustee or general partner. For
purposes of this definition, “control” (including the correlative meanings of
the terms “controlled by” and “under common control with”), as used with
respect to any Person, shall mean the possession, directly, or indirectly
through one or more intermediaries, of the power to direct or cause the
direction of the management and policies of such Person, whether by contract,
through the ownership of voting securities, partnership interests or other
equity interests or otherwise.


 


”Business Day” means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in Houston,
Texas are authorized or obligated by applicable law, regulation or executive
order to close.


 


“Closing Date” means April 5, 2005.


 


“Commission” means the Securities and Exchange Commission.


 


“Common Shares” is defined in the first recital clause of
this Agreement.


 


“Common Stock” is defined in the first recital clause of this
Agreement.


 


“Company” is defined in the introductory paragraph of this
Agreement, and any successor thereto.


 


“Controlling Person” is defined in Section 6(a) hereof.


 


“End of Suspension Notice” is defined in Section 5(b) hereof.


 


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“Exchange Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission
pursuant thereto.


 


“Holder” means each record owner of any Registrable Shares
from time to time, including, but not limited to, each of the Purchasers for
such time as they are the record owner of any of the Registrable Shares.


 


“Indemnified Party” is defined in Section 6(c) hereof.


 


“Indemnifying Party” is defined in Section 6(c) hereof.


 


“Liabilities” is defined in Section 6(a) hereof.


 


“Mandatory Registration Statement” means the Mandatory Shelf
Registration Statement or any Subsequent Shelf Registration Statement.


 


“Mandatory Shelf Registration Statement” is defined in Section 2(a) hereof.


 


“NASD” means the National Association of Securities Dealers, Inc.


 


“Person” means an individual, limited liability company,
partnership, corporation, trust, unincorporated organization, government or
agency or political subdivision thereof, or any other legal entity.


 


“Piggyback Registration Statement” is defined in Section 2(b) hereof.


 


“Prior Holder” means PHAWK and any other investor a party to
or beneficiary of the Registration Rights Agreement dated May 26, 2004 by
and between the Company and PHAWK.


 


“Prospectus” means the prospectus included in any
Registration Statement, including any preliminary prospectus, and all other
amendments and supplements to any such prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.


 


“Purchaser Indemnitee” is defined in Section 6(a) hereof.


 


“Purchasers” is defined in the first recital clause of this
Agreement.


 


“Registrable Shares” means each of the Common Shares and
any Additional Shares in respect thereof, upon original issuance thereof, and
at all times subsequent thereto, including upon the transfer thereof by the
original holder or any subsequent holder, until, in the case of any such Shares
or Additional Shares, as applicable, the earliest to occur of:


 


(i)            the date on which they have been sold
pursuant to a Registration Statement or sold pursuant to Rule 144;


 


(ii)           the date on which they are saleable, in the
opinion of counsel to the Company, without registration under the Securities
Act pursuant to Rule 144(k);


 


(iii)          the date on which they are saleable, without
restriction, pursuant to an available exemption from registration under the Securities
Act; or


 


(iv)          the date on which they are sold to the
Company or its subsidiaries.


 


“Registration Expenses” means any and all expenses incident
to the performance of or compliance with this Agreement, including, without
limitation: (i) all Commission, securities exchange, NASD registration,


 


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listing, inclusion and filing fees, (ii) all fees and expenses
incurred in connection with compliance with international, federal or state
securities or blue sky laws (including, without limitation, any registration,
listing and filing fees and reasonable fees and disbursements of counsel in
connection with blue sky qualification of any of the Registrable Shares and the
preparation of a blue sky memorandum and compliance with the rules of the
NASD), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, duplicating, printing, delivering and distributing
any Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements, certificates and any
other documents relating to the performance under and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing or inclusion of any of the Registrable Shares on the NASDAQ Stock
Market pursuant to Section 4(n) of this Agreement, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company (including, without limitation, the expenses of any
special audit and “cold comfort” letters required by or incident to such
performance), and (vi) any fees and disbursements customarily paid in
issues and sales of securities (including the fees and expenses of any experts
retained by the Company in connection with any Registration Statement), provided, however, that Registration
Expenses shall exclude brokers’ or underwriters’ discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Shares by a Holder and the fees and disbursements of any counsel to the
Holders.


 


“Registration Statement” means any Mandatory Registration
Statement or Piggyback Registration Statement.


 


“Rule 144”, “Rule 158”,
“Rule 415”, or “Rule 424”, respectively, means such
specified rule promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.


 


“Securities Act” means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the Commission
thereunder.


 


“Shares” means the Common Shares.


 


“Subsequent Shelf Registration Statement” is defined in Section 2(c) hereof.


 


“Suspension Event” is defined in Section 5(b) hereof.


 


“Suspension Notice” is defined in Section 5(b) hereof.


 


“Underwritten Offering” means a sale of securities of the
Company to an underwriter or underwriters for reoffering to the public.


 


2.             Registration Rights.


 


(a)           Mandatory Shelf
Registration.    As
set forth in Section 4, the Company agrees to file with the Commission as
soon as reasonably practicable, but in no event later than 15 days
following the Closing Date, a shelf registration statement on Form S-3 or
such other form under the Securities Act then available to the Company
providing for the resale pursuant to Rule 415 from time to time by the
Holders of any and all Registrable Shares consisting of (i) Common Shares
and all Additional Shares in respect thereof (in each case including for the
avoidance of doubt any Additional Shares that are issued prior to the
effectiveness of such shelf registration statement) (including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference,
if any, in such registration statement, the “Mandatory
Shelf Registration Statement”).


 


(i)            Effectiveness and Scope.    The Company shall use its
commercially reasonable efforts to cause any Mandatory Registration Statement
to be declared effective by the Commission as soon as reasonably practicable
following such filing, and to remain effective until the earlier of (A) the


 


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second anniversary of the
effective date of the initial Mandatory Shelf Registration Statement (subject
to extension pursuant to Section 5(c)) (provided that in such case each
Holder shall have received a certificate with all restrictive legends removed
as a result of the applicable Registrable Shares being freely transferable
under Rule 144(k)), or (B) the date on which all Shares and any
Additional Shares in respect thereof cease to be Registrable Shares. The
Company may include any shares of Common Stock owned by a Prior Holder in a
Mandatory Shelf Registration Statement. Any Mandatory Shelf Registration
Statement shall provide for the resale from time to time, and pursuant to any
method or combination of methods legally available (including, without
limitation, an Underwritten Offering, a direct sale to purchasers, a sale
through brokers or agents, or a sale over the internet) by the Holders of any
and all Registrable Shares.


 


(ii)           Underwriting.    If any Holder proposes to
conduct an Underwritten Offering under a Mandatory Shelf Registration
Statement, such Holder shall advise the Company, all other Holders, and any
Prior Holders whose securities are included in the Mandatory Shelf Registration
Statement, of the managing underwriters for such proposed Underwritten
Offering, such managing underwriters to be subject to the approval of the
Company, not to be unreasonably withheld. In such event, the Company shall
enter into an underwriting agreement in customary form with the managing
underwriters, which shall include, among other provisions, indemnities to the
effect and to the extent provided in Section 6, and shall take all such
other reasonable actions as are requested by the managing underwriter in order
to expedite or facilitate the registration and disposition of the Registrable
Shares included in such Underwritten Offering. All Holders proposing to
distribute their Registrable Shares through such Underwritten Offering and, if
a Prior Holder elects to distribute its shares of Common Stock through such
Underwritten Offering, such Prior Holder, shall enter into an underwriting
agreement in customary form with the managing underwriters selected for such
underwriting and complete and execute any questionnaires, powers of attorney,
indemnities, securities escrow agreements and other documents reasonably
required under the terms of such underwriting, and furnish to the Company such
information in writing as the Company may reasonably request for inclusion in
the Registration Statement; provided,
however, that neither any Holder nor any Prior Holder shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements as are customary and reasonably requested by the underwriters.
Notwithstanding any other provision of this Agreement, if the managing
underwriters determine in good faith that marketing factors require a
limitation on the number of shares to be included in such Underwritten
Offering, then the managing underwriters may exclude shares (including
Registrable Shares) from the Underwritten Offering, and any shares included in
the Underwritten Offering shall be allocated first,
to each of the Holders requesting inclusion of their Registrable Shares in such
Underwritten Offering on a pro rata basis
based on the total number of Registrable Shares then held by each such Holder
which is requesting inclusion, and second,
to any Prior Holders requesting inclusion of their shares in such Underwritten
Offering.


 


(iii)          Selling Stockholder
Questionnaires.    Each
Holder agrees, by its acquisition of Registrable Shares, that if such Holder
wishes to sell Registrable Shares pursuant to the Mandatory Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this Section 2(a)(iii).
Each Holder wishing to sell Registrable Shares pursuant to a Mandatory Shelf
Registration Statement and related Prospectus agrees to deliver a written
notice, substantially in form and substance of Annex A (a “Notice and Questionnaire”), to the
Company. The Company shall mail the Notice and Questionnaire to the Holders no
later than the date of initial filing of the Mandatory Shelf Registration
Statement with the Commission. No Holder shall be entitled to be named as a
selling securityholder in the Mandatory Shelf Registration Statement as of the
initial effective date of the Mandatory Shelf Registration Statement, and no
Holder shall be entitled to use the Prospectus forming a part thereof for
resales of Registrable Shares at any time, unless such Holder has returned a
completed and signed Notice and Questionnaire to the Company by the deadline
for response set forth therein; provided, however, Holders shall have at least
20 calendar days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and
Questionnaire to the Company. Notwithstanding the foregoing, (x) upon the
request of any Holder that did not return a Notice and Questionnaire on a
timely basis


 


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or did not receive a Notice
and Questionnaire because it was a subsequent transferee of Registrable Shares
after the Company mailed the Notice and Questionnaire, the Company shall
distribute a Notice and Questionnaire to such Holders at the address set forth
in the request and (y) upon receipt of a properly completed Notice and
Questionnaire from such Holder, the Company shall use all commercially
reasonable efforts to name such Holder as a selling securityholder in the
Mandatory Shelf Registration Statement by means of a pre-effective amendment,
by means of a post-effective amendment or, if permitted by the Commission, by means
of a Prospectus supplement to the Mandatory Shelf Registration Statement;
provided, however, that the Company will have no obligation to add Holders to
the Shelf Mandatory Registration Statement as selling securityholders more
frequently that one time per every 30 calendar days.


 


(b)           Piggyback Registration.    If, after the date hereof,
the Company proposes to file a registration statement under the Securities
Act providing for a public offering of the Company’s securities, other than a
registration statement on Form S-8 or Form S-4 or any similar form
hereafter adopted by the Commission as a replacement therefor (including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement, the “Piggyback Registration Statement”), the
Company will notify each Holder of the proposed filing and afford each Holder
an opportunity to include in such Piggyback Registration Statement all or any
part of the Registrable Shares then held by such Holder. Each Holder desiring
to include in any such Piggyback Registration Statement all or part of the Registrable
Shares held by such Holder shall, within ten (10) days after delivery of
the above-described notice by the Company, so notify the Company in writing,
and in such notice shall inform the Company of the number of Registrable Shares
such Holder wishes to include in such Piggyback Registration Statement and
provide, as a condition to such inclusion, such information regarding itself,
the Registrable Shares held by it and the intended method of disposition of
such securities as is required pursuant to Regulation S-K promulgated
under the Securities Act to effect the registration of the Registrable Shares.
Any election by any Holder to include any Registrable Shares in such Piggyback
Registration Statement will not affect the inclusion of such Registrable Shares
in the Mandatory Shelf Registration Statement until such Registrable Shares
have been sold under the Piggyback Registration Statement; provided, however, that at such time, the
Company shall have the right to remove from the Mandatory Shelf Registration
Statement the Registrable Shares sold pursuant to the Piggyback Registration
Statement.


 


(i)            Right to Terminate
Piggyback Registration.    At
any time, the Company may terminate or withdraw any Piggyback Registration
Statement referred to in this Section 2(b), and without any obligation to
any such Holder whether or not any Holder has elected to include Registrable
Shares in such registration. The Company shall also have the right to suspend
the effectiveness and use of any Piggyback Registration Statement at any time
for an unlimited amount of time whether or not any Holder has elected to
include Registrable Shares in such registration.


 


(ii)           Underwriting.    The Company shall advise
the Holders of the managing underwriters for any Underwritten Offering proposed
under the Piggyback Registration Statement. The right of any such Holder’s
Registrable Shares to be included in any Piggyback Registration Statement
pursuant to this Section 2(b) shall be conditioned upon such Holder’s
participation in such Underwritten Offering and the inclusion of such Holder’s
Registrable Shares in the Underwritten Offering to the extent provided herein.
All Holders proposing to distribute their Registrable Shares through such
Underwritten Offering shall enter into an underwriting agreement in customary
form with the managing underwriters selected for such underwriting and complete
and execute any questionnaires, powers of attorney, indemnities, securities
escrow agreements and other documents reasonably required under the terms of
such underwriting, and furnish to the Company such information in writing as
the Company may reasonably request for inclusion in the Registration Statement;
provided, however, that no Holder
shall be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements as are customary and reasonably requested by the underwriters.
Notwithstanding any other provision of this Agreement, if the managing
underwriters determine in good faith that marketing factors require a
limitation on the number of shares to be included, then


 


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the managing underwriters
may exclude shares (including Registrable Shares) from the Piggyback Registration
Statement and the Underwritten Offering, and any Shares included in the
Piggyback Registration Statement and the Underwritten Offering shall be
allocated, first, to the Company,
and second, to each of the
Holders and the Prior Holder(s) requesting inclusion of their Registrable
Shares in such Piggyback Registration Statement on a pro rata basis based on the total number of Registrable
Shares then held by each such Holder which is requesting inclusion. If any
Holder disapproves of the terms of any Underwritten Offering, such Holder may
elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least 10 Business Days prior to the effective date of
the Piggyback Registration Statement. Any Registrable Shares excluded or
withdrawn from such Underwritten Offering shall be excluded and withdrawn from
the Piggyback Registration Statement.


 


(iii)          Hold-Back Agreement.    By electing to include
Registrable Shares in the Piggyback Registration Statement, if any, the Holder
shall be deemed to have agreed not to effect any sale or distribution of
securities of the Company of the same or similar class or classes of the
securities included in the Registration Statement or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 under the Securities Act, during such periods as
reasonably requested (but in no event for a period longer than 60 days
following the effective date of the Piggyback Registration Statement, provided
each of the executive officers and directors of the Company that hold shares of
Common Stock of the Company or securities convertible into or exchangeable or
exercisable for shares of Common Stock of the Company are subject to the same
restriction for the entire time period required of the Holders hereunder) by
the representatives of the underwriters, if an Underwritten Offering.


 


(iv)          Mandatory Shelf
Registration not Impacted by Piggyback Registration Statement.    The Company’s obligation to
file any Mandatory Shelf Registration Statement shall not be affected by the
filing or effectiveness of the Piggyback Registration Statement.


 


(c)           Subsequent Shelf
Registration for Additional Shares Issued after Effectiveness of the Mandatory
Shelf Registration Statement.    If
any Additional Shares are issued or distributed to Holders after the
effectiveness of the Mandatory Shelf Registration Statement, or such Additional
Shares were otherwise not included in a prior Registration Statement, then the
Company shall as soon as practicable file an additional shelf registration
statement (including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement,
a “Subsequent Shelf Registration Statement”)
covering such Additional Shares on behalf of the Holders thereof in the same
manner, and subject to the same provisions in this Agreement as the Mandatory
Shelf Registration Statement.


 


(d)           Expenses.    The Company shall pay all
Registration Expenses in connection with the registration of the Registrable
Shares pursuant to this Agreement. Each Holder participating in a registration
pursuant to this Section 2 shall bear such Holder’s proportionate share
(based on the total number of Registrable Shares sold in such registration) of
all discounts and commissions payable to underwriters or brokers and all transfer
taxes in connection with a registration of Registrable Shares pursuant to this
Agreement and any other expense of the Holders not specifically allocated to
the Company pursuant to this Agreement relating to the sale or disposition of
such Holder’s Registrable Shares pursuant to any Registration Statement.


 


3.             Rule 144 Reporting.


 


With a view to making
available the benefits of certain rules and regulations of the Commission
that may permit the sale of the Registrable Shares to the public without registration,
the Company agrees to, so long as any Holder owns any Registrable Shares:


 


(a)           make and keep public information available,
as those terms are understood and defined in Rule 144(c) under the
Securities Act;


 


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(b)           use its commercially reasonable efforts to
file with the Commission in a timely manner all reports and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act; and


 


(c)           furnish to any Holder promptly upon request a
written statement by the Company as to its compliance in all material respects
with the reporting requirements of Rule 144 and of the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company, and take such reasonable further
actions consistent with this Section 3, as a Holder may reasonably request
in availing itself of any rule or regulation of the Commission allowing a
Holder to sell any such Registrable Shares without registration.


 


4.             Registration Procedures.


 


In connection with the
obligations of the Company with respect to any registration pursuant to this
Agreement, the Company shall:


 


(a)           prepare and file with the Commission, as
specified in this Agreement, each Registration Statement, which Registration
Statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and use its commercially
reasonable efforts to cause any Mandatory Registration Statement to become and
remain effective as set forth in Section 2(a)(i) hereof; provided, however, that the Company shall
not be required to cause any Piggyback Registration Statement to become or
remain effective;


 


(b)           subject to Section 4(i) hereof, (i) prepare
and file with the Commission such amendments and post-effective amendments to
each such Registration Statement as may be necessary to keep such Registration
Statement effective for the period described in Section 4(a) hereof, (ii) cause
each Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any
similar rule that may be adopted under the Securities Act, and (iii) comply
in all material respects with the provisions of the Securities Act with respect
to the disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the selling Holders thereof;


 


(c)           furnish to the Holders, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Shares; the Company hereby consenting to the use of such
Prospectus, including each preliminary Prospectus, by the Holders, if any, in
connection with the offering and sale of the Registrable Shares covered by any
such Prospectus;


 


(d)           use its commercially reasonable efforts to
register or qualify, or obtain exemption from registration or qualification
for, all Registrable Shares by the time the applicable Registration Statement
is declared effective by the Commission under all applicable state securities
or “blue sky” laws of such domestic jurisdictions as any Holder covered by a
Registration Statement shall reasonably request in writing, keep each such registration
or qualification or exemption effective during the period such Registration
Statement is required to be kept effective pursuant to Section 4(a) and
do any and all other acts and things that may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 4(d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) submit to the
general service of process in any such jurisdiction;


 


(e)           use its commercially reasonable efforts to
cause all Registrable Shares covered by such Registration Statement to be
registered and approved by such other domestic governmental agencies or
authorities, if any, as may be necessary to enable the Holders thereof to
consummate the disposition of such Registrable Shares;


 


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(f)            notify each Holder with Registrable Shares
covered by a Registration Statement promptly and, if requested by any such
Holder, confirm such advice in writing (i) when such Registration
Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose, (iii) of any request by the Commission or
any other federal or state governmental authority for amendments or supplements
to such Registration Statement or related Prospectus or for additional
information, and (iv) of the happening of any event during the period such
Registration Statement is effective as a result of which such Registration
Statement or the related Prospectus or any document incorporated by reference
therein contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading (which information shall be accompanied by an
instruction to suspend the use of the Registration Statement and the Prospectus
until the requisite changes have been made);


 


(g)           during the period of time referred to in Section 4(a) above,
use its commercially reasonable efforts to avoid the issuance of, or if issued,
to obtain the withdrawal of, any order enjoining or suspending the use or
effectiveness of a Registration Statement or suspending the qualification (or
exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, as promptly as practicable;


 


(h)           upon request, furnish to each requesting
Holder with Registrable Shares covered by a Registration Statement, without
charge, at least one conformed copy of such Registration Statement and any
post-effective amendment or supplement thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);


 


(i)            except as provided in Section 5, upon
the occurrence of any event contemplated by Section 4(f)(iv), use its
commercially reasonable efforts to promptly prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Shares, such Prospectus will not contain any 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, and, upon request, promptly furnish
to each requesting Holder a reasonable number of copies of each such supplement
or post-effective amendment;


 


(j)            if requested by the representative of the
underwriters, if any, or any Holders of Registrable Shares being sold in
connection with an Underwritten Offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such material information as
the representative of the underwriters, if any, or such Holders indicate
relates to them or otherwise reasonably request be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;


 


(k)           in the case of an Underwritten Offering, use
its commercially reasonable efforts to furnish or caused to be furnished to
each Holder of Registrable Shares covered by such Registration Statement and
the underwriters a signed counterpart, addressed to each such Holder and the
underwriters, of: (i) an opinion of counsel for the Company, dated the
date of each closing under the underwriting agreement, reasonably satisfactory
to the underwriters; and (ii) a “comfort” letter, dated the effective date
of such Registration Statement and the date of each closing under the
underwriting agreement, signed by the independent public accountants who have
certified the Company’s financial statements included in such Registration
Statement, covering substantially the same matters with respect to such
Registration Statement (and the Prospectus included therein) and with respect
to events subsequent to the date of such financial statements, as are
customarily covered in accountants’ letters delivered to underwriters in
underwritten public offerings of securities, and such other financial matters
as the underwriters may reasonably request and customarily obtained by
underwriters in underwritten offerings; provided that, in order to be an
addressee of the comfort letter, each Holder may be required to confirm that it
is in the category of persons to whom a comfort letter may be delivered in
accordance with applicable accounting literature;


 


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(l)            enter into customary agreements (including in
the case of an Underwritten Offering, an underwriting agreement in customary
form) and take all other action in connection therewith in order to expedite or
facilitate the distribution of the Registrable Shares included in such
Registration Statement and, in the case of an Underwritten Offering, make
representations and warranties to the underwriters in such form and scope as
are customarily made by issuers to underwriters in underwritten offerings
consistent with representations and warranties made by the Company in public or
private offerings and confirm the same to the extent customary if and when
requested;


 


(m)          in connection with an Underwritten Offering,
use its commercially reasonable efforts to make available for inspection by the
representative of any underwriters participating in any disposition pursuant to
a Registration Statement, all financial and other records, pertinent corporate
documents and properties of the Company and cause the respective officers,
directors and employees of the Company to supply all information reasonably
requested by any such representatives, the representative of the underwriters,
counsel thereto or accountants in connection with a Registration Statement; provided, however, that such records,
documents or information that the Company determines, in good faith, to be
confidential and notifies such representatives, representative of the
underwriters, counsel thereto or accountants are confidential shall not be
disclosed by the representatives, representative of the underwriters, counsel
thereto or accountants unless (i) the disclosure of such records,
documents or information is necessary to avoid or correct a misstatement or
omission in a Registration Statement or Prospectus, (ii) the release of
such records, documents or information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, or (iii) such records,
documents or information have been generally made available to the public; provided further, that to the extent
practicable, the foregoing inspection and information gathering shall be
coordinated on behalf of the Holders and the other parties entitled thereto by
one counsel designated by and on behalf of the Holders and the other parties,
which counsel the Company determines in good faith is reasonably acceptable;


 


(n)           use its commercially reasonable efforts
(including, without limitation, seeking to cure in the Company’s listing or
inclusion application any deficiencies cited by the exchange or market) to list
or include all Registrable Shares on any securities exchange or the Nasdaq
Stock Market on which the Common Stock is then listed or included;


 


(o)           prepare and file in a timely manner all
documents and reports required by the Exchange Act and, to the extent the
Company’s obligation to file such reports pursuant to Section 15(d) of
the Exchange Act expires prior to the expiration of the effectiveness period of
the Registration Statement as required by Section 4(a) hereof, the
Company shall register the Registrable Shares under the Exchange Act and shall
maintain such registration through the effectiveness period required by Section 4(a) hereof;


 


(p)           (i) otherwise use its commercially
reasonable efforts to comply in all material respects with all applicable rules and
regulations of the Commission, (ii) make generally available to its
stockholders, as soon as reasonably practicable, earnings statements covering
at least 12 months that satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder, and (iii) delay filing
any Registration Statement or Prospectus or amendment or supplement to such
Registration Statement or Prospectus to which any Holder of Registrable Shares
covered by any Registration Statement shall have reasonably objected on the
grounds that such Registration Statement or Prospectus or amendment or
supplement does not comply in all material respects with the requirements of
the Securities Act, such Holder having been furnished with a copy thereof at
least two Business Days prior to the filing thereof, provided that the Company
may file such Registration Statement or Prospectus or amendment or supplement
following such time as the Company shall have made a good faith effort to resolve
any such issue with the objecting Holder and shall have advised the Holder in
writing of its reasonable belief that such filing complies in all material
respects with the requirements of the Securities Act;


 


(q)           cause to be maintained a registrar and
transfer agent for all Registrable Shares covered by any Registration Statement
from and after a date not later than the effective date of such Registration
Statement; and


 


9





















 


(r)            in connection with any sale or transfer of
the Registrable Shares (whether or not pursuant to a Registration Statement)
that will result in the securities being delivered no longer constituting
Registrable Shares, cooperate with the Holders and the representative of the
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Shares to be sold, which certificates
shall not bear any transfer restrictive legends (other than as required by the
Company’s charter), and to enable such Registrable Shares to be in such
denominations and registered in such names as the representative of the
underwriters, if any, or the Holders may request at least three Business Days
prior to any sale of the Registrable Shares.


 


The Company may require the
Holders to furnish to the Company such information regarding the proposed
distribution by such Holder as the Company may from time to time reasonably
request in writing or as shall be required to effect the registration of the
Registrable Shares, and no Holder shall be entitled to be named as a selling
stockholder in any Registration Statement and no Holder shall be entitled to
use the Prospectus forming a part thereof if such Holder does not provide such
information to the Company. Each Holder further agrees to furnish promptly to
the Company in writing all information required from time to time to make the
information previously furnished by such Holder not misleading.


 


Each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 4(f)(ii), 4(f)(iii) or 4(f)(iv) hereof,
such Holder will immediately discontinue disposition of Registrable Shares
pursuant to a Registration Statement until (i) any such stop order is
vacated or (ii) if an event described in Section 4(f)(iii) or
4(f)(iv) occurs, such Holder’s receipt of the copies of the supplemented
or amended Prospectus. If so directed by the Company, such Holder will deliver
to the Company (at the reasonable expense of the Company) all copies in its
possession, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Registrable Shares current at the time of
receipt of such notice.


 


5.             Suspension Period.


 


(a)           Subject to the provisions of this Section 5
and a good faith determination by a majority of the Board of Directors of the
Company that it is in the best interests of the Company to suspend the use of
any Mandatory Registration Statement, following the effectiveness of such
Mandatory Registration Statement (and the filings with any international,
federal or state securities commissions), the Company, by written notice to each
of the Holders, may direct the Holders to suspend sales of the Registrable
Shares pursuant to such Mandatory Registration Statement for such times as the
Company reasonably may determine is necessary and advisable (but in no event
for more than 45 days in any 90-day period or more than 60 days in
any 12-month period), if any of the following events shall occur: pending discussions
relating to, or the consummation of, a transaction or the occurrence of an
event (x) that would require additional disclosure of material information
by the Company in the Mandatory Registration Statement (or such filings) and
which has not been so disclosed, (y) as to which the Company has a bona
fide business purpose for preserving confidentiality, or (z) that renders
the Company unable to comply with Commission requirements, in each case under
circumstances that would make it impractical or inadvisable to promptly amend
or supplement the Mandatory Registration Statement on a post-effective basis,
as applicable. Upon the earlier to occur of (i) the Company delivering to
the Holders an End of Suspension Notice, as hereinafter defined, or (ii) the
end of the maximum permissible suspension period, the Company shall use its
commercially reasonable efforts to promptly amend or supplement the Mandatory
Registration Statement on a post-effective basis, if necessary, or to take such
action as is necessary to make resumed use of the Mandatory Registration
Statement compatible with the Company’s best interests, as applicable, so as to
permit the Holders to resume sales of the Registrable Shares as soon as
possible. The Company shall have the right to suspend the effectiveness and use
of any Piggyback Registration Statement at any time for an unlimited amount of
time.


 


(b)           In the case of an event that causes the
Company to suspend the use of a Registration Statement (a “Suspension Event”), the Company shall give
written notice (a “Suspension Notice”)
to the Holders to suspend sales of the Registrable Shares, and such notice
shall state that such suspension shall continue only for so long as the
Suspension Event or its effect is continuing and the Company is taking all
reasonable steps to terminate suspension of the effectiveness of the
Registration Statement as promptly as possible.


 


10





















 


The Holders shall not effect any sales of the Registrable Shares
pursuant to such Registration Statement (or such filings) at any time after it
has received a Suspension Notice from the Company and prior to receipt of an
End of Suspension Notice (as defined below). If so directed by the Company,
each Holder will deliver to the Company (at the expense of the Company) all
copies other than permanent file copies then in such Holder’s possession of the
Prospectus covering the Registrable Shares at the time of receipt of the
Suspension Notice. The Holders may recommence effecting sales of the
Registrable Shares pursuant to the Registration Statement (or such filings)
following further notice to such effect (an “End
of Suspension Notice”) from the Company, which End of Suspension
Notice shall be given by the Company to the Holders in the manner described
above promptly following the conclusion of any Suspension Event and its effect.


 


(c)           Notwithstanding any provision herein to the
contrary, if the Company shall give a Suspension Notice pursuant to this Section 5
with respect to any Mandatory Registration Statement, the Company agrees that
it shall extend the period of time during which such Mandatory Registration
Statement shall be maintained effective pursuant to this Agreement by the
number of days during the period from the date of the giving of the Suspension
Notice to and including the date when Holders shall have received the End of
Suspension Notice and copies of the supplemented or amended Prospectus
necessary to resume sales; provided such period of time shall not be extended
beyond the date that Shares or Additional Shares are not Registrable Shares.


 


6.             Indemnification and
Contribution.


 


(a)           The Company agrees to indemnify and hold
harmless (i) each Holder, (ii) each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act) any of the foregoing (a “Controlling
Person”), and (iii) the respective officers, directors,
partners, members, employees, representatives and agents of each Holder or any
Controlling Person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as a “Purchaser
Indemnitee”) from and against any and all losses, claims, damages,
judgments, actions, reasonable out-of-pocket expenses, and other liabilities
(the “Liabilities”), including,
without limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of outside counsel to
any Purchaser Indemnitee, joint or several, directly or indirectly related to,
based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Company shall have
furnished to such Purchaser Indemnitee any amendments or supplements thereto),
or any preliminary Prospectus or any other document prepared by the Company
used to sell the Registrable Shares, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a Prospectus, in light of the
circumstances under which they were made), not misleading, except insofar as
such Liabilities arise out of or are based upon (i) any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and
in conformity with information relating to any Purchaser Indemnitee furnished
to the Company or any underwriter in writing by such Purchaser Indemnitee
expressly for use therein, (ii) any untrue statement contained in or
omission from a preliminary Prospectus if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished to or on behalf of
the Holder participating in the distribution relating to the relevant
Registration Statement any amendments or supplements thereto) was not sent or
given by or on behalf of such Holder to the Person asserting any such
Liabilities who purchased Shares, if such Prospectus (or Prospectus as amended
or supplemented) is required by law to be sent or given at or prior to the
written confirmation of the sale of such Shares to such Person and the untrue
statement contained in or omission from such preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented), or (iii) any
sales by any Holder after the delivery by the Company to such Holder of a
Suspension Notice and before the delivery by the Company of an End of
Suspension Notice. The indemnity provided for herein shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Purchaser Indemnitee.


 


(b)           In connection with any Registration Statement
in which a Holder is participating, such Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, each Person who controls


 


11





















 


the Company within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, and the respective officers,
directors, partners, members, representatives, employees and agents of such
Person or Controlling Person to the same extent as the foregoing indemnity from
the Company to each Purchaser Indemnitee, but only with reference to (i) untrue
statements or omissions or alleged untrue statements or omissions made in
reliance upon and in strict conformity with information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary Prospectus and (ii) any sales by any Holder after the
delivery by the Company to such Holder of a Suspension Notice and before the
delivery by the Company of an End of Suspension Notice. The liability of any
Holder pursuant to clause (i) of the immediately preceding sentence
shall in no event exceed the net proceeds received by such Holder from sales of
Registrable Shares giving rise to such obligations. If the Holder elects to
include Registrable Shares in an Underwritten Offering, the Holder shall be
required to agree to such customary indemnification provisions as may
reasonably be required by the underwriter in connection with such Underwritten
Offering.


 


(c)           If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any Person in respect of which indemnity may be sought
pursuant to Section 6(a) or 6(b), such Person (the “Indemnified Party”), shall promptly notify
the Person against whom such indemnity may be sought (the “Indemnifying Party”), in writing of the
commencement thereof (but the failure to so notify an Indemnifying Party shall
not relieve it from any liability which it may have under this Section 6,
except to the extent the Indemnifying Party is materially prejudiced by the
failure to give notice), and the Indemnifying Party, upon request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may reasonably designate in such proceeding and shall assume
the defense of such proceeding and pay the fees and expenses actually incurred
by such counsel related to such proceeding. Notwithstanding the foregoing, in
any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party, unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed in writing to the contrary, (ii) the
Indemnifying Party failed within a reasonable time after notice of commencement
of the action to assume the defense and employ counsel reasonably satisfactory
to the Indemnified Party, (iii) the Indemnifying Party and its counsel do
not pursue in a reasonable manner the defense of such action or (iv) the
named parties to any such action (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, or any affiliate of the
Indemnifying Party, and such Indemnified Party shall have been reasonably
advised by counsel that, either (x) there may be one or more legal defenses
available to it which are different from or additional to those available to
the Indemnifying Party or such affiliate of the Indemnifying Party or
(y) a conflict may exist between such Indemnified Party and the
Indemnifying Party or such affiliate of the Indemnifying Party, in which event
the Indemnifying Party shall not have the right to assume or direct the defense
of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such
action or separate but substantially similar or related actions arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Indemnified Parties, which firm shall be designated in
writing by those Indemnified Parties who sold a majority of the Registrable
Shares sold by all such Indemnified Parties and any such separate firm for the
Company, the directors, the officers and such control Persons of the Company as
shall be designated in writing by the Company. The Indemnifying Party shall not
be liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld or delayed, but if
settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify any Indemnified Party from and
against any loss or liability by reason of such settlement or judgment to the extent
provided in this Section 6 without reference to this sentence. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.


 


(d)           If the indemnification provided for in Section 6(a) or
6(b) is for any reason held to be unavailable


 


12





















 


to an Indemnified Party in respect of any Liabilities referred to
therein (other than by reason of the exceptions provided therein) or is
insufficient to hold harmless a party indemnified thereunder, then each
Indemnifying Party under such sections, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such Liabilities (i) in such
proportion as is appropriate to reflect the relative benefits of the
Indemnified Party on the one hand and the Indemnifying Parties on the other in
connection with the statements or omissions that resulted in such Liabilities,
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but
also the relative fault of the Indemnifying Parties and the Indemnified Party,
as well as any other relevant equitable considerations. The relative fault of
the Company, on the one hand, and any Purchaser Indemnitees, on the other,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
such Purchaser Indemnitees and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.


 


(e)           The parties agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if
such Indemnified Parties were treated as one entity for such purpose), or by
any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by
an Indemnified Party as a result of any Liabilities referred to in Section 6(d) shall
be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such Indemnified Party
in connection with investigating or defending any such action or claim. For
purposes of this Section 6, each Person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act) a Holder shall have the same rights to contribution as such Holder,
as the case may be, and each Person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act)
the Company, and each officer, director, partner, member, employee,
representative, agent or manager of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought
from any obligation it or they may have under this Section 6 or otherwise,
except to the extent that any party is materially prejudiced by the failure to
give notice. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act), shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.


 


(f)            The indemnity and contribution agreements
contained in this Section 6 will be in addition to any liability which the
indemnifying parties may otherwise have to the indemnified parties referred to
above. Each Purchaser Indemnitee’s obligations to contribute pursuant to this Section 6
are not joint but are several in the proportion that the number of Shares sold
by such Purchaser Indemnitee bears to the number of Shares sold by all
Purchaser Indemnities.


 


7.             Termination of the Company’s
Obligations.


 


The Company shall have no
further obligations pursuant to this Agreement at such time as no Registrable
Shares are outstanding, provided, however, that the Company’s obligations under
Sections 3, 6 and 8 of this Agreement shall remain in full force and effect
following such time.


 


8.             Miscellaneous.


 


(a)           Amendments and Waivers.    This Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given, without the written consent of the
Company and Holders beneficially owning a majority of the then outstanding
Registrable Shares; provided, however,
that for purposes of this Agreement, Registrable Shares owned, directly or
indirectly, by an Affiliate of the Company shall not be deemed to be
outstanding. Notwithstanding the foregoing, a waiver or consent to or departure
from the provisions hereof with respect to a matter that


 


13





















 


relates exclusively to the rights of a Holder whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may
be given by such Holder; provided that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.


 


(b)           Notices.    All notices and other
communications, provided for or permitted hereunder shall be made in writing
and delivered by facsimile (with receipt confirmed), overnight courier or
registered or certified mail, return receipt requested, or by telegram,
addressed as follows:


 


(i)            if to a Holder, at the most current address
given by the transfer agent and registrar of the Shares to the Company;


 


(ii)           if to the Company, at the offices of the
Company at 1100 Louisiana Street, Suite 4400, Houston, Texas 77002,
Attention: Stephen W. Herod, (facsimile 832-204-2877); with copies (which shall
not constitute notice) to: (A) Hinkle Elkouri Law Firm L.L.C., 2000 Epic
Center, 301 North Main Street, Wichita, Kansas 67202, Attention: David S.
Elkouri, Esq. (Fax: (316) 264-1518) and (B) Thompson &
Knight LLP, 333 Clay Street, Suite 3300, Houston, Texas 77002, Attention:
Dallas Parker, Esq. (facsimile 832-397-8110); and


 


(iii)          if to the Purchasers, to them at the address
set forth on Exhibit A hereto, or such other address as each Purchaser may
specify in writing to the Company.


 


(c)           Successors and Assigns;
Third Party Beneficiaries.    This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto and shall inure to the benefit of each
Holder. The Company agrees that the Holders shall be third party beneficiaries
to the agreements made hereunder by the Purchasers and the Company, and each
Holder shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights
hereunder; provided, however, that
such Holder fulfills all of its obligations hereunder.


 


(d)           Counterparts.    This Agreement may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.


 


(e)           Governing
Law.     THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT OF THE DISTRICT
OF DELAWARE OR THE DELAWARE STATE COURT SYSTEM, INCLUDING, BUT NOT LIMTED TO,
THE DELAWARE COURT OF CHANCERY, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


(f)            Severability.    If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that


 


14





















 


contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties hereto that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.


 


(g)           Entire Agreement.    This Agreement, together
with the Stock Purchase Agreement, is intended by the parties hereto as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein and therein.


 


(h)           Registrable Shares Held by
the Company or its Affiliates.    Whenever
the consent or approval of Holders of a specified percentage of Registrable
Shares is required hereunder, Registrable Shares held by the Company or its
Affiliates shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.


 


(i)            Survival.    This Agreement is intended
to survive the consummation of the transactions contemplated by the Stock
Purchase Agreement. The indemnification and contribution obligations under Section 6
of this Agreement shall survive the termination of the Company’s obligations
under Section 2 of this Agreement.


 


(j)            Headings.    The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the provisions of this Agreement. All references made in this
Agreement to “Section” refer to such Section of this Agreement, unless
expressly stated otherwise.


 


IN WITNESS
WHEREOF, the parties
have executed this Agreement as of the date first above written.


 


	
  “COMPANY”

  	
   

  
	
   

  	
   

  
	
  PETROHAWK ENERGY CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name: Floyd C. Wilson

  	
   

  
	
  Title: President and Chief
  Executive Officer

  	
   

  
	
   

  	
   

  
	
  “PURCHASERS”

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: North Sound Legacy
  International Ltd.

  	
  By: North Sound Legacy
  Institutional Fund, LLC

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  By: North Sound Legacy
  Fund, LLC

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
										



 


15





















 


EXHIBIT A


PURCHASERS


 


North Sound Legacy Fund LLC                                     


c/o North Sound Capital LLC


53 Forest Avenue


Old Greenwich, CT 06870


Attn: Andrew B. David, General Counsel


Fax: (203) 967-5701


 


North Sound Legacy Institutional Fund LLC


c/o North Sound Capital LLC


53 Forest Avenue


Old Greenwich, CT 06870


Attn: Andrew B. David, General Counsel


Fax: (203) 967-5701


 


North Sound Legacy International Ltd.


c/o North Sound Capital LLC


53 Forest Avenue


Old Greenwich, CT 06870


Attn: Andrew B. David, General Counsel


Fax: (203) 967-5701


 


16