**Exhibit 4.6**

 

**REGISTRATION RIGHTS AGREEMENT**

 

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

 

**W I T N E S S E T H:**

 

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

 

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

 

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

 

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

 

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

 

”*Agreement*” means this Registration Rights Agreement made andentered into as of April 1, 2005.

 

”*Affiliate*” means, as to any specified Person, (i) anyPerson that directly, or indirectly through one or more intermediaries,controls or is controlled by, or is under common control with, the specifiedPerson, (ii) any executive officer, director, trustee or general partnerof the specified Person and (iii) any legal entity for which the specifiedPerson acts as an executive officer, director, trustee or general partner. Forpurposes of this definition, “control” (including the correlative meanings ofthe terms “controlled by” and “under common control with”), as used withrespect to any Person, shall mean the possession, directly, or indirectlythrough one or more intermediaries, of the power to direct or cause thedirection of the management and policies of such Person, whether by contract,through the ownership of voting securities, partnership interests or otherequity 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 executiveorder to close.

 

“*Closing Date*” means April 5, 2005.

 

“*Commission*” means the Securities and Exchange Commission.

 

“*Common Shares*” is defined in the first recital clause ofthis Agreement.

 

“*Common Stock*” is defined in the first recital clause of thisAgreement.

 

“*Company*” is defined in the introductory paragraph of thisAgreement, 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, asamended, and the rules and regulations promulgated by the Commissionpursuant thereto.

 

“*Holder*” means each record owner of any Registrable Sharesfrom time to time, including, but not limited to, each of the Purchasers forsuch 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 ShelfRegistration 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 oragency 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 toor beneficiary of the Registration Rights Agreement dated May 26, 2004 byand between the Company and PHAWK.

 

“*Prospectus*” means the prospectus included in anyRegistration Statement, including any preliminary prospectus, and all otheramendments and supplements to any such prospectus, including post-effectiveamendments, and all material incorporated by reference or deemed to beincorporated 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 thisAgreement.

 

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

 

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

 

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

 

(iii)          the date on which they are saleable, withoutrestriction, pursuant to an available exemption from registration under the SecuritiesAct; or

 

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

 

“*Registration Expenses*” means any and all expenses incidentto the performance of or compliance with this Agreement, including, withoutlimitation: (i) all Commission, securities exchange, NASD registration,

 

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listing, inclusion and filing fees, (ii) all fees and expensesincurred in connection with compliance with international, federal or statesecurities or blue sky laws (including, without limitation, any registration,listing and filing fees and reasonable fees and disbursements of counsel inconnection with blue sky qualification of any of the Registrable Shares and thepreparation of a blue sky memorandum and compliance with the rules of theNASD), (iii) all expenses of any Persons in preparing or assisting inpreparing, word processing, duplicating, printing, delivering and distributingany Registration Statement, any Prospectus, any amendments or supplements thereto,any underwriting agreements, securities sales agreements, certificates and anyother documents relating to the performance under and compliance with thisAgreement, (iv) all fees and expenses incurred in connection with thelisting or inclusion of any of the Registrable Shares on the NASDAQ StockMarket pursuant to Section 4(n) of this Agreement, (v) the fees anddisbursements of counsel for the Company and of the independent publicaccountants of the Company (including, without limitation, the expenses of anyspecial audit and “cold comfort” letters required by or incident to suchperformance), and (vi) any fees and disbursements customarily paid inissues and sales of securities (including the fees and expenses of any expertsretained by the Company in connection with any Registration Statement), *provided, however*, that RegistrationExpenses shall exclude brokers’ or underwriters’ discounts and commissions andtransfer taxes, if any, relating to the sale or disposition of RegistrableShares by a Holder and the fees and disbursements of any counsel to theHolders.

 

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

 

“*Rule 144*”, “*Rule 158*”,“*Rule 415*”, or “*Rule 424*”, respectively, means suchspecified rule promulgated by the Commission pursuant to the SecuritiesAct, as such rule may be amended from time to time, or any similar rule orregulation hereafter adopted by the Commission as a replacement thereto havingsubstantially the same effect as such rule.

 

“*Securities Act*” means the Securities Act of 1933, asamended, and the rules and regulations promulgated by the Commissionthereunder.

 

“*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 theCompany to an underwriter or underwriters for reoffering to the public.

 

2.             *Registration Rights*.

 

(a)           *Mandatory ShelfRegistration.*   Asset forth in Section 4, the Company agrees to file with the Commission assoon as reasonably practicable, but in no event later than 15 daysfollowing the Closing Date, a shelf registration statement on Form S-3 orsuch other form under the Securities Act then available to the Companyproviding for the resale pursuant to Rule 415 from time to time by theHolders of any and all Registrable Shares consisting of (i) Common Sharesand all Additional Shares in respect thereof (in each case including for theavoidance of doubt any Additional Shares that are issued prior to theeffectiveness 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 allmaterial incorporated by reference or deemed to be incorporated by reference,if any, in such registration statement, the “*MandatoryShelf Registration Statement*”).

 

(i)            *Effectiveness and Scope.*   The Company shall use itscommercially reasonable efforts to cause any Mandatory Registration Statementto be declared effective by the Commission as soon as reasonably practicablefollowing such filing, and to remain effective until the earlier of (A) the

 

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second anniversary of theeffective date of the initial Mandatory Shelf Registration Statement (subjectto extension pursuant to Section 5(c)) (provided that in such case eachHolder shall have received a certificate with all restrictive legends removedas a result of the applicable Registrable Shares being freely transferableunder Rule 144(k)), or (B) the date on which all Shares and anyAdditional Shares in respect thereof cease to be Registrable Shares. TheCompany may include any shares of Common Stock owned by a Prior Holder in aMandatory Shelf Registration Statement. Any Mandatory Shelf RegistrationStatement shall provide for the resale from time to time, and pursuant to anymethod or combination of methods legally available (including, withoutlimitation, an Underwritten Offering, a direct sale to purchasers, a salethrough brokers or agents, or a sale over the internet) by the Holders of anyand all Registrable Shares.

 

(ii)           *Underwriting.*   If any Holder proposes toconduct an Underwritten Offering under a Mandatory Shelf RegistrationStatement, such Holder shall advise the Company, all other Holders, and anyPrior Holders whose securities are included in the Mandatory Shelf RegistrationStatement, of the managing underwriters for such proposed UnderwrittenOffering, such managing underwriters to be subject to the approval of theCompany, not to be unreasonably withheld. In such event, the Company shallenter into an underwriting agreement in customary form with the managingunderwriters, which shall include, among other provisions, indemnities to theeffect and to the extent provided in Section 6, and shall take all suchother reasonable actions as are requested by the managing underwriter in orderto expedite or facilitate the registration and disposition of the RegistrableShares included in such Underwritten Offering. All Holders proposing todistribute their Registrable Shares through such Underwritten Offering and, ifa Prior Holder elects to distribute its shares of Common Stock through suchUnderwritten Offering, such Prior Holder, shall enter into an underwritingagreement in customary form with the managing underwriters selected for suchunderwriting and complete and execute any questionnaires, powers of attorney,indemnities, securities escrow agreements and other documents reasonablyrequired under the terms of such underwriting, and furnish to the Company suchinformation in writing as the Company may reasonably request for inclusion inthe Registration Statement; *provided,however*, that neither any Holder nor any Prior Holder shall berequired to make any representations or warranties to or agreements with theCompany or the underwriters other than representations, warranties oragreements as are customary and reasonably requested by the underwriters.Notwithstanding any other provision of this Agreement, if the managingunderwriters determine in good faith that marketing factors require alimitation on the number of shares to be included in such UnderwrittenOffering, then the managing underwriters may exclude shares (includingRegistrable Shares) from the Underwritten Offering, and any shares included inthe Underwritten Offering shall be allocated *first*,to each of the Holders requesting inclusion of their Registrable Shares in suchUnderwritten Offering on a *pro rata*basisbased on the total number of Registrable Shares then held by each such Holderwhich is requesting inclusion, and *second*,to any Prior Holders requesting inclusion of their shares in such UnderwrittenOffering.

 

(iii)          *Selling StockholderQuestionnaires.*   EachHolder agrees, by its acquisition of Registrable Shares, that if such Holderwishes to sell Registrable Shares pursuant to the Mandatory Shelf RegistrationStatement 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 ShelfRegistration Statement and related Prospectus agrees to deliver a writtennotice, substantially in form and substance of Annex A (a “*Notice and Questionnaire*”), to theCompany. The Company shall mail the Notice and Questionnaire to the Holders nolater than the date of initial filing of the Mandatory Shelf RegistrationStatement with the Commission. No Holder shall be entitled to be named as aselling securityholder in the Mandatory Shelf Registration Statement as of theinitial effective date of the Mandatory Shelf Registration Statement, and noHolder shall be entitled to use the Prospectus forming a part thereof forresales of Registrable Shares at any time, unless such Holder has returned acompleted and signed Notice and Questionnaire to the Company by the deadlinefor response set forth therein; provided, however, Holders shall have at least20 calendar days from the date on which the Notice and Questionnaire is firstmailed to such Holders to return a completed and signed Notice andQuestionnaire to the Company. Notwithstanding the foregoing, (x) upon therequest of any Holder that did not return a Notice and Questionnaire on atimely basis

 

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or did not receive a Noticeand Questionnaire because it was a subsequent transferee of Registrable Sharesafter the Company mailed the Notice and Questionnaire, the Company shalldistribute a Notice and Questionnaire to such Holders at the address set forthin the request and (y) upon receipt of a properly completed Notice andQuestionnaire from such Holder, the Company shall use all commerciallyreasonable efforts to name such Holder as a selling securityholder in theMandatory Shelf Registration Statement by means of a pre-effective amendment,by means of a post-effective amendment or, if permitted by the Commission, by meansof a Prospectus supplement to the Mandatory Shelf Registration Statement;provided, however, that the Company will have no obligation to add Holders tothe Shelf Mandatory Registration Statement as selling securityholders morefrequently 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 SecuritiesAct providing for a public offering of the Company’s securities, other than aregistration statement on Form S-8 or Form S-4 or any similar formhereafter adopted by the Commission as a replacement therefor (including theProspectus, amendments and supplements to such registration statement orProspectus, including pre- and post-effective amendments, all exhibits theretoand all material incorporated by reference or deemed to be incorporated byreference, if any, in such registration statement, the “*Piggyback Registration Statement*”), theCompany will notify each Holder of the proposed filing and afford each Holderan opportunity to include in such Piggyback Registration Statement all or anypart of the Registrable Shares then held by such Holder. Each Holder desiringto include in any such Piggyback Registration Statement all or part of the RegistrableShares held by such Holder shall, within ten (10) days after delivery ofthe 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 Sharessuch Holder wishes to include in such Piggyback Registration Statement andprovide, as a condition to such inclusion, such information regarding itself,the Registrable Shares held by it and the intended method of disposition ofsuch securities as is required pursuant to Regulation S-K promulgatedunder the Securities Act to effect the registration of the Registrable Shares.Any election by any Holder to include any Registrable Shares in such PiggybackRegistration Statement will not affect the inclusion of such Registrable Sharesin the Mandatory Shelf Registration Statement until such Registrable Shareshave been sold under the Piggyback Registration Statement; *provided, however*, that at such time, theCompany shall have the right to remove from the Mandatory Shelf RegistrationStatement the Registrable Shares sold pursuant to the Piggyback RegistrationStatement.

 

(i)            *Right to TerminatePiggyback Registration.*   Atany time, the Company may terminate or withdraw any Piggyback RegistrationStatement referred to in this Section 2(b), and without any obligation toany such Holder whether or not any Holder has elected to include RegistrableShares in such registration. The Company shall also have the right to suspendthe effectiveness and use of any Piggyback Registration Statement at any timefor an unlimited amount of time whether or not any Holder has elected toinclude Registrable Shares in such registration.

 

(ii)           *Underwriting.*   The Company shall advisethe Holders of the managing underwriters for any Underwritten Offering proposedunder the Piggyback Registration Statement. The right of any such Holder’sRegistrable Shares to be included in any Piggyback Registration Statementpursuant to this Section 2(b) shall be conditioned upon such Holder’sparticipation in such Underwritten Offering and the inclusion of such Holder’sRegistrable Shares in the Underwritten Offering to the extent provided herein.All Holders proposing to distribute their Registrable Shares through suchUnderwritten Offering shall enter into an underwriting agreement in customaryform with the managing underwriters selected for such underwriting and completeand execute any questionnaires, powers of attorney, indemnities, securitiesescrow agreements and other documents reasonably required under the terms ofsuch underwriting, and furnish to the Company such information in writing asthe Company may reasonably request for inclusion in the Registration Statement;*provided, however*, that no Holdershall be required to make any representations or warranties to or agreementswith the Company or the underwriters other than representations, warranties oragreements as are customary and reasonably requested by the underwriters.Notwithstanding any other provision of this Agreement, if the managingunderwriters determine in good faith that marketing factors require alimitation on the number of shares to be included, then

 

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the managing underwritersmay exclude shares (including Registrable Shares) from the Piggyback RegistrationStatement and the Underwritten Offering, and any Shares included in thePiggyback Registration Statement and the Underwritten Offering shall beallocated, *first*, to the Company,and *second*, to each of theHolders and the Prior Holder(s) requesting inclusion of their RegistrableShares in such Piggyback Registration Statement on a *pro rata*basis based on the total number of RegistrableShares then held by each such Holder which is requesting inclusion. If anyHolder disapproves of the terms of any Underwritten Offering, such Holder mayelect to withdraw therefrom by written notice to the Company and theunderwriter, delivered at least 10 Business Days prior to the effective date ofthe Piggyback Registration Statement. Any Registrable Shares excluded orwithdrawn from such Underwritten Offering shall be excluded and withdrawn fromthe Piggyback Registration Statement.

 

(iii)          *Hold-Back Agreement.*   By electing to includeRegistrable Shares in the Piggyback Registration Statement, if any, the Holdershall be deemed to have agreed not to effect any sale or distribution ofsecurities of the Company of the same or similar class or classes of thesecurities included in the Registration Statement or any securities convertibleinto or exchangeable or exercisable for such securities, including a salepursuant to Rule 144 under the Securities Act, during such periods asreasonably requested (but in no event for a period longer than 60 daysfollowing the effective date of the Piggyback Registration Statement, providedeach of the executive officers and directors of the Company that hold shares ofCommon Stock of the Company or securities convertible into or exchangeable orexercisable for shares of Common Stock of the Company are subject to the samerestriction for the entire time period required of the Holders hereunder) bythe representatives of the underwriters, if an Underwritten Offering.

 

(iv)          *Mandatory ShelfRegistration not Impacted by Piggyback Registration Statement.*   The Company’s obligation tofile any Mandatory Shelf Registration Statement shall not be affected by thefiling or effectiveness of the Piggyback Registration Statement.

 

(c)           *Subsequent ShelfRegistration for Additional Shares Issued after Effectiveness of the MandatoryShelf Registration Statement.*   Ifany Additional Shares are issued or distributed to Holders after theeffectiveness of the Mandatory Shelf Registration Statement, or such AdditionalShares were otherwise not included in a prior Registration Statement, then theCompany shall as soon as practicable file an additional shelf registrationstatement (including the Prospectus, amendments and supplements to suchregistration statement or Prospectus, including pre- and post-effectiveamendments, all exhibits thereto and all material incorporated by reference ordeemed 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 samemanner, and subject to the same provisions in this Agreement as the MandatoryShelf Registration Statement.

 

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

 

3.             *Rule 144 Reporting*.

 

With a view to makingavailable the benefits of certain rules and regulations of the Commissionthat 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 theSecurities Act;

 

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

 

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

 

4.             *Registration Procedures*.

 

In connection with theobligations of the Company with respect to any registration pursuant to thisAgreement, the Company shall:

 

(a)           prepare and file with the Commission, asspecified in this Agreement, each Registration Statement, which RegistrationStatement shall comply as to form in all material respects with therequirements of the applicable form and include all financial statementsrequired by the Commission to be filed therewith, and use its commerciallyreasonable efforts to cause any Mandatory Registration Statement to become andremain effective as set forth in Section 2(a)(i) hereof; *provided, however*, that the Company shallnot be required to cause any Piggyback Registration Statement to become orremain effective;

 

(b)           subject to Section 4(i) hereof, (i) prepareand file with the Commission such amendments and post-effective amendments toeach such Registration Statement as may be necessary to keep such RegistrationStatement effective for the period described in Section 4(a) hereof, (ii) causeeach Prospectus contained therein to be supplemented by any required Prospectussupplement, and as so supplemented to be filed pursuant to Rule 424 or anysimilar rule that may be adopted under the Securities Act, and (iii) complyin all material respects with the provisions of the Securities Act with respectto the disposition of all securities covered by each Registration Statementduring the applicable period in accordance with the intended method or methodsof distribution by the selling Holders thereof;

 

(c)           furnish to the Holders, without charge, asmany copies of each Prospectus, including each preliminary Prospectus, and anyamendment or supplement thereto and such other documents as such Holder mayreasonably request, in order to facilitate the public sale or other dispositionof the Registrable Shares; the Company hereby consenting to the use of suchProspectus, including each preliminary Prospectus, by the Holders, if any, inconnection with the offering and sale of the Registrable Shares covered by anysuch Prospectus;

 

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

 

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

 

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(f)            notify each Holder with Registrable Sharescovered by a Registration Statement promptly and, if requested by any suchHolder, confirm such advice in writing (i) when such RegistrationStatement has become effective and when any post-effective amendments andsupplements thereto become effective, (ii) of the issuance by theCommission or any state securities authority of any stop order suspending theeffectiveness of such Registration Statement or the initiation of anyproceedings for that purpose, (iii) of any request by the Commission orany other federal or state governmental authority for amendments or supplementsto such Registration Statement or related Prospectus or for additionalinformation, and (iv) of the happening of any event during the period suchRegistration Statement is effective as a result of which such RegistrationStatement or the related Prospectus or any document incorporated by referencetherein contains any untrue statement of a material fact or omits to state anymaterial fact required to be stated therein or necessary to make the statementstherein not misleading (which information shall be accompanied by aninstruction to suspend the use of the Registration Statement and the Prospectusuntil 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 oreffectiveness of a Registration Statement or suspending the qualification (orexemption from qualification) of any of the Registrable Shares for sale in anyjurisdiction, as promptly as practicable;

 

(h)           upon request, furnish to each requestingHolder with Registrable Shares covered by a Registration Statement, withoutcharge, at least one conformed copy of such Registration Statement and anypost-effective amendment or supplement thereto (without documents incorporatedtherein by reference or exhibits thereto, unless requested);

 

(i)            except as provided in Section 5, uponthe occurrence of any event contemplated by Section 4(f)(iv), use itscommercially reasonable efforts to promptly prepare a supplement orpost-effective amendment to a Registration Statement or the related Prospectusor any document incorporated therein by reference or file any other requireddocument so that, as thereafter delivered to the purchasers of the RegistrableShares, such Prospectus will not contain any untrue statement of a materialfact or omit to state a material fact required to be stated therein ornecessary to make the statements therein, in the light of the circumstancesunder which they were made, not misleading, and, upon request, promptly furnishto each requesting Holder a reasonable number of copies of each such supplementor post-effective amendment;

 

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

 

(k)           in the case of an Underwritten Offering, useits commercially reasonable efforts to furnish or caused to be furnished toeach Holder of Registrable Shares covered by such Registration Statement andthe underwriters a signed counterpart, addressed to each such Holder and theunderwriters, of: (i) an opinion of counsel for the Company, dated thedate of each closing under the underwriting agreement, reasonably satisfactoryto the underwriters; and (ii) a “comfort” letter, dated the effective dateof such Registration Statement and the date of each closing under theunderwriting agreement, signed by the independent public accountants who havecertified the Company’s financial statements included in such RegistrationStatement, covering substantially the same matters with respect to suchRegistration Statement (and the Prospectus included therein) and with respectto events subsequent to the date of such financial statements, as arecustomarily covered in accountants’ letters delivered to underwriters inunderwritten public offerings of securities, and such other financial mattersas the underwriters may reasonably request and customarily obtained byunderwriters in underwritten offerings; provided that, in order to be anaddressee of the comfort letter, each Holder may be required to confirm that itis in the category of persons to whom a comfort letter may be delivered inaccordance with applicable accounting literature;

 

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(l)            enter into customary agreements (including inthe case of an Underwritten Offering, an underwriting agreement in customaryform) and take all other action in connection therewith in order to expedite orfacilitate the distribution of the Registrable Shares included in suchRegistration Statement and, in the case of an Underwritten Offering, makerepresentations and warranties to the underwriters in such form and scope asare customarily made by issuers to underwriters in underwritten offeringsconsistent with representations and warranties made by the Company in public orprivate offerings and confirm the same to the extent customary if and whenrequested;

 

(m)          in connection with an Underwritten Offering,use its commercially reasonable efforts to make available for inspection by therepresentative of any underwriters participating in any disposition pursuant toa Registration Statement, all financial and other records, pertinent corporatedocuments and properties of the Company and cause the respective officers,directors and employees of the Company to supply all information reasonablyrequested 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 beconfidential and notifies such representatives, representative of theunderwriters, counsel thereto or accountants are confidential shall not bedisclosed by the representatives, representative of the underwriters, counselthereto or accountants unless (i) the disclosure of such records,documents or information is necessary to avoid or correct a misstatement oromission in a Registration Statement or Prospectus, (ii) the release ofsuch records, documents or information is ordered pursuant to a subpoena orother 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 extentpracticable, the foregoing inspection and information gathering shall becoordinated on behalf of the Holders and the other parties entitled thereto byone 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 orinclusion application any deficiencies cited by the exchange or market) to listor include all Registrable Shares on any securities exchange or the NasdaqStock Market on which the Common Stock is then listed or included;

 

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

 

(p)           (i) otherwise use its commerciallyreasonable efforts to comply in all material respects with all applicable rules andregulations of the Commission, (ii) make generally available to itsstockholders, as soon as reasonably practicable, earnings statements coveringat least 12 months that satisfy the provisions of Section 11(a) ofthe Securities Act and Rule 158 thereunder, and (iii) delay filingany Registration Statement or Prospectus or amendment or supplement to suchRegistration Statement or Prospectus to which any Holder of Registrable Sharescovered by any Registration Statement shall have reasonably objected on thegrounds that such Registration Statement or Prospectus or amendment orsupplement does not comply in all material respects with the requirements ofthe Securities Act, such Holder having been furnished with a copy thereof atleast two Business Days prior to the filing thereof, provided that the Companymay file such Registration Statement or Prospectus or amendment or supplementfollowing such time as the Company shall have made a good faith effort to resolveany such issue with the objecting Holder and shall have advised the Holder inwriting of its reasonable belief that such filing complies in all materialrespects with the requirements of the Securities Act;

 

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

 

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

 

The Company may require theHolders to furnish to the Company such information regarding the proposeddistribution by such Holder as the Company may from time to time reasonablyrequest in writing or as shall be required to effect the registration of theRegistrable Shares, and no Holder shall be entitled to be named as a sellingstockholder in any Registration Statement and no Holder shall be entitled touse the Prospectus forming a part thereof if such Holder does not provide suchinformation to the Company. Each Holder further agrees to furnish promptly tothe Company in writing all information required from time to time to make theinformation 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 ofthe kind described in Section 4(f)(ii), 4(f)(iii) or 4(f)(iv) hereof,such Holder will immediately discontinue disposition of Registrable Sharespursuant to a Registration Statement until (i) any such stop order isvacated or (ii) if an event described in Section 4(f)(iii) or4(f)(iv) occurs, such Holder’s receipt of the copies of the supplementedor amended Prospectus. If so directed by the Company, such Holder will deliverto the Company (at the reasonable expense of the Company) all copies in itspossession, other than permanent file copies then in such Holder’s possession,of the Prospectus covering such Registrable Shares current at the time ofreceipt of such notice.

 

5.             *Suspension Period*.

 

(a)           Subject to the provisions of this Section 5and a good faith determination by a majority of the Board of Directors of theCompany that it is in the best interests of the Company to suspend the use ofany Mandatory Registration Statement, following the effectiveness of suchMandatory Registration Statement (and the filings with any international,federal or state securities commissions), the Company, by written notice to eachof the Holders, may direct the Holders to suspend sales of the RegistrableShares pursuant to such Mandatory Registration Statement for such times as theCompany reasonably may determine is necessary and advisable (but in no eventfor more than 45 days in any 90-day period or more than 60 days inany 12-month period), if any of the following events shall occur: pending discussionsrelating to, or the consummation of, a transaction or the occurrence of anevent (x) that would require additional disclosure of material informationby the Company in the Mandatory Registration Statement (or such filings) andwhich has not been so disclosed, (y) as to which the Company has a bonafide business purpose for preserving confidentiality, or (z) that rendersthe Company unable to comply with Commission requirements, in each case undercircumstances that would make it impractical or inadvisable to promptly amendor supplement the Mandatory Registration Statement on a post-effective basis,as applicable. Upon the earlier to occur of (i) the Company delivering tothe Holders an End of Suspension Notice, as hereinafter defined, or (ii) theend of the maximum permissible suspension period, the Company shall use itscommercially reasonable efforts to promptly amend or supplement the MandatoryRegistration Statement on a post-effective basis, if necessary, or to take suchaction as is necessary to make resumed use of the Mandatory RegistrationStatement compatible with the Company’s best interests, as applicable, so as topermit the Holders to resume sales of the Registrable Shares as soon aspossible. The Company shall have the right to suspend the effectiveness and useof any Piggyback Registration Statement at any time for an unlimited amount oftime.

 

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

 

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The Holders shall not effect any sales of the Registrable Sharespursuant to such Registration Statement (or such filings) at any time after ithas received a Suspension Notice from the Company and prior to receipt of anEnd 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) allcopies other than permanent file copies then in such Holder’s possession of theProspectus covering the Registrable Shares at the time of receipt of theSuspension Notice. The Holders may recommence effecting sales of theRegistrable Shares pursuant to the Registration Statement (or such filings)following further notice to such effect (an “*Endof Suspension Notice*”) from the Company, which End of SuspensionNotice shall be given by the Company to the Holders in the manner describedabove promptly following the conclusion of any Suspension Event and its effect.

 

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

 

6.             *Indemnification andContribution*.

 

(a)           The Company agrees to indemnify and holdharmless (i) each Holder, (ii) each Person, if any, who controls(within the meaning of Section 15 of the Securities Act or Section 20(a) ofthe Exchange Act) any of the foregoing (a “*ControllingPerson*”), and (iii) the respective officers, directors,partners, members, employees, representatives and agents of each Holder or anyControlling Person (any Person referred to in clause (i), (ii) or (iii) mayhereinafter be referred to as a “*PurchaserIndemnitee*”) 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 ofinvestigating, preparing, pursuing or defending any claim or action, or anyinvestigation or proceeding by any governmental agency or body, commenced orthreatened, including the reasonable fees and expenses of outside counsel toany Purchaser Indemnitee, joint or several, directly or indirectly related to,based upon, arising out of or in connection with any untrue statement oralleged untrue statement of a material fact contained in any RegistrationStatement or Prospectus (as amended or supplemented if the Company shall havefurnished to such Purchaser Indemnitee any amendments or supplements thereto),or any preliminary Prospectus or any other document prepared by the Companyused to sell the Registrable Shares, or any omission or alleged omission tostate therein a material fact required to be stated therein or necessary tomake the statements therein (in the case of a Prospectus, in light of thecircumstances under which they were made), not misleading, except insofar assuch Liabilities arise out of or are based upon (i) any untrue statementor omission or alleged untrue statement or omission made in reliance upon andin conformity with information relating to any Purchaser Indemnitee furnishedto the Company or any underwriter in writing by such Purchaser Indemniteeexpressly for use therein, (ii) any untrue statement contained in oromission from a preliminary Prospectus if a copy of the Prospectus (as thenamended or supplemented, if the Company shall have furnished to or on behalf ofthe Holder participating in the distribution relating to the relevantRegistration Statement any amendments or supplements thereto) was not sent orgiven by or on behalf of such Holder to the Person asserting any suchLiabilities who purchased Shares, if such Prospectus (or Prospectus as amendedor supplemented) is required by law to be sent or given at or prior to thewritten confirmation of the sale of such Shares to such Person and the untruestatement contained in or omission from such preliminary Prospectus wascorrected in the Prospectus (or the Prospectus as amended or supplemented), or (iii) anysales by any Holder after the delivery by the Company to such Holder of aSuspension Notice and before the delivery by the Company of an End ofSuspension Notice. The indemnity provided for herein shall remain in full forceand effect regardless of any investigation made by or on behalf of anyPurchaser Indemnitee.

 

(b)           In connection with any Registration Statementin which a Holder is participating, such Holder agrees, severally and notjointly, to indemnify and hold harmless the Company, each Person who controls

 

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

 

(c)           If any suit, action, proceeding (includingany governmental or regulatory investigation), claim or demand shall be broughtor asserted against any Person in respect of which indemnity may be soughtpursuant to Section 6(a) or 6(b), such Person (the “*Indemnified Party*”), shall promptly notifythe Person against whom such indemnity may be sought (the “*Indemnifying Party*”), in writing of thecommencement thereof (but the failure to so notify an Indemnifying Party shallnot relieve it from any liability which it may have under this Section 6,except to the extent the Indemnifying Party is materially prejudiced by thefailure to give notice), and the Indemnifying Party, upon request of theIndemnified Party, shall retain counsel reasonably satisfactory to theIndemnified Party to represent the Indemnified Party and any others theIndemnifying Party may reasonably designate in such proceeding and shall assumethe defense of such proceeding and pay the fees and expenses actually incurredby such counsel related to such proceeding. Notwithstanding the foregoing, inany such proceeding, any Indemnified Party shall have the right to retain itsown counsel, but the fees and expenses of such counsel shall be at the expenseof such Indemnified Party, unless (i) the Indemnifying Party and theIndemnified Party shall have mutually agreed in writing to the contrary, (ii) theIndemnifying Party failed within a reasonable time after notice of commencementof the action to assume the defense and employ counsel reasonably satisfactoryto the Indemnified Party, (iii) the Indemnifying Party and its counsel donot pursue in a reasonable manner the defense of such action or (iv) thenamed parties to any such action (including any impleaded parties) include bothsuch Indemnified Party and the Indemnifying Party, or any affiliate of theIndemnifying Party, and such Indemnified Party shall have been reasonablyadvised by counsel that, either (x) there may be one or more legal defensesavailable to it which are different from or additional to those available tothe Indemnifying Party or such affiliate of the Indemnifying Party or(y) a conflict may exist between such Indemnified Party and theIndemnifying Party or such affiliate of the Indemnifying Party, in which eventthe Indemnifying Party shall not have the right to assume or direct the defenseof such action on behalf of such Indemnified Party, it being understood,however, that the Indemnifying Party shall not, in connection with any one suchaction or separate but substantially similar or related actions arising out ofthe same general allegations or circumstances, be liable for the fees andexpenses of more than one separate firm of attorneys (in addition to any localcounsel) for all such Indemnified Parties, which firm shall be designated inwriting by those Indemnified Parties who sold a majority of the RegistrableShares sold by all such Indemnified Parties and any such separate firm for theCompany, the directors, the officers and such control Persons of the Company asshall be designated in writing by the Company. The Indemnifying Party shall notbe liable for any settlement of any proceeding effected without its writtenconsent, which consent shall not be unreasonably withheld or delayed, but ifsettled with such consent or if there be a final judgment for the plaintiff,the Indemnifying Party agrees to indemnify any Indemnified Party from andagainst any loss or liability by reason of such settlement or judgment to the extentprovided in this Section 6 without reference to this sentence. NoIndemnifying Party shall, without the prior written consent of the IndemnifiedParty, effect any settlement of any pending or threatened proceeding in respectof which any Indemnified Party is or could have been a party and indemnitycould have been sought hereunder by such Indemnified Party, unless suchsettlement includes an unconditional release of such Indemnified Party from allliability on claims that are the subject matter of such proceeding.

 

(d)           If the indemnification provided for in Section 6(a) or6(b) is for any reason held to be unavailable

 

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to an Indemnified Party in respect of any Liabilities referred totherein (other than by reason of the exceptions provided therein) or isinsufficient to hold harmless a party indemnified thereunder, then eachIndemnifying Party under such sections, in lieu of indemnifying suchIndemnified Party thereunder, shall contribute to the amount paid or payable bysuch Indemnified Party as a result of such Liabilities (i) in suchproportion as is appropriate to reflect the relative benefits of theIndemnified Party on the one hand and the Indemnifying Parties on the other inconnection with the statements or omissions that resulted in such Liabilities,or (ii) if the allocation provided by clause (i) above is notpermitted by applicable law, in such proportion as is appropriate to reflectnot only the relative benefits referred to in clause (i) above butalso the relative fault of the Indemnifying Parties and the Indemnified Party,as well as any other relevant equitable considerations. The relative fault ofthe Company, on the one hand, and any Purchaser Indemnitees, on the other,shall be determined by reference to, among other things, whether the untrue oralleged untrue statement of a material fact or the omission or alleged omissionto state a material fact relates to information supplied by the Company or bysuch Purchaser Indemnitees and the parties’ relative intent, knowledge, accessto information and opportunity to correct or prevent such statement oromission.

 

(e)           The parties agree that it would not be justand equitable if contribution pursuant to this Section 6 were determinedby *pro rata*allocation (even ifsuch Indemnified Parties were treated as one entity for such purpose), or byany other method of allocation that does not take account of the equitableconsiderations referred to in Section 6(d). The amount paid or payable byan Indemnified Party as a result of any Liabilities referred to in Section 6(d) shallbe deemed to include, subject to the limitations set forth above, anyreasonable legal or other expenses actually incurred by such Indemnified Partyin connection with investigating or defending any such action or claim. Forpurposes of this Section 6, each Person, if any, who controls (within themeaning of Section 15 of the Act or Section 20(a) of theExchange 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 meaningof 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 tocontribution as the Company. Any party entitled to contribution will, promptlyafter receipt of notice of commencement of any action, suit or proceedingagainst such party in respect of which a claim for contribution may be madeagainst another party or parties, notify each party or parties from whomcontribution may be sought, but the omission to so notify such party or partiesshall not relieve the party or parties from whom contribution may be soughtfrom 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 togive notice. No Person guilty of fraudulent misrepresentation (within themeaning of Section 11(f) of the Securities Act), shall be entitled tocontribution from any Person who was not guilty of such fraudulentmisrepresentation.

 

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

 

7.             *Termination of the Company’sObligations*.

 

The Company shall have nofurther obligations pursuant to this Agreement at such time as no RegistrableShares are outstanding, provided, however, that the Company’s obligations underSections 3, 6 and 8 of this Agreement shall remain in full force and effectfollowing such time.

 

8.             *Miscellaneous*.

 

(a)           *Amendments and Waivers.*   This Agreement may not beamended, modified or supplemented, and waivers or consents to or departuresfrom the provisions hereof may not be given, without the written consent of theCompany and Holders beneficially owning a majority of the then outstandingRegistrable Shares; *provided, however*,that for purposes of this Agreement, Registrable Shares owned, directly orindirectly, by an Affiliate of the Company shall not be deemed to beoutstanding. Notwithstanding the foregoing, a waiver or consent to or departurefrom the provisions hereof with respect to a matter that

 

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

 

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

 

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

 

(ii)           if to the Company, at the offices of theCompany at 1100 Louisiana Street, Suite 4400, Houston, Texas 77002,Attention: Stephen W. Herod, (facsimile 832-204-2877); with copies (which shallnot constitute notice) to: (A) Hinkle Elkouri Law Firm L.L.C., 2000 EpicCenter, 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 addressset forth on Exhibit A hereto, or such other address as each Purchaser mayspecify in writing to the Company.

 

(c)           *Successors and Assigns;Third Party Beneficiaries.*   ThisAgreement shall inure to the benefit of and be binding upon the successors andassigns of each of the parties hereto and shall inure to the benefit of eachHolder. The Company agrees that the Holders shall be third party beneficiariesto the agreements made hereunder by the Purchasers and the Company, and eachHolder shall have the right to enforce such agreements directly to the extentit deems such enforcement necessary or advisable to protect its rightshereunder; *provided, however,*thatsuch Holder fulfills all of its obligations hereunder.

 

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

 

(e)           ***GoverningLaw.***    **THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED INACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS MADEAND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OFCONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THENONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT OF THE DISTRICTOF DELAWARE OR THE DELAWARE STATE COURT SYSTEM, INCLUDING, BUT NOT LIMTED TO,THE DELAWARE COURT OF CHANCERY, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDINGARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FORITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THEJURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLYWAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLELAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THEVENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANYCLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HASBEEN BROUGHT IN AN INCONVENIENT FORUM.**

 

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

 

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

 

(g)           *Entire Agreement.*   This Agreement, togetherwith the Stock Purchase Agreement, is intended by the parties hereto as a finalexpression of their agreement, and is intended to be a complete and exclusivestatement of the agreement and understanding of the parties hereto in respectof the subject matter contained herein and therein.

 

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

 

(i)            *Survival.*   This Agreement is intendedto survive the consummation of the transactions contemplated by the StockPurchase Agreement. The indemnification and contribution obligations under Section 6of this Agreement shall survive the termination of the Company’s obligationsunder Section 2 of this Agreement.

 

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

 

**IN WITNESSWHEREOF,**the partieshave 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:                                        |                                            |   |   |
|                                          |                                            |
|                                          |                                            |   |
|                                          |                                            |   |
|                                               |                                                 |  |  |  |  |  |  |  |  |

 

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**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

 

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