Exhibit 10.1
STOCK VOTING
AGREEMENT
STOCK VOTING AGREEMENT, dated as of
September 29, 2009 (this “ Agreement ”), is
by and among the undersigned stockholder (the “
Stockholder ”), and Cano Petroleum, Inc., a
Delaware corporation (the “ Company
”).
WHEREAS, concurrently herewith,
Resaca Exploitation, Inc., a Texas corporation (“
Resaca ”), Resaca Acquisition Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of Resaca
(“ Merger Sub ”), and the Company are entering
into an Agreement and Plan of Merger of even date herewith (the
“ Merger Agreement ”), pursuant to which Merger
Sub will merge with and into Company (the “ Merger
”). Each capitalized term used herein and not otherwise
defined shall have the meaning set forth in the Merger
Agreement;
WHEREAS, the Stockholder, as of the
date hereof, has Beneficial Ownership, as defined in Section 6
hereof, of the number of shares of Series D Convertible
Preferred Stock, no par value per share, of the Company (“
Company Preferred Stock ”) set forth on
Exhibit A hereto (together with any shares of Company
Preferred Stock or common stock, par value $0.0001 per share, of
the Company (“ Company Common Stock ”) acquired
by the Stockholder after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable shares, or by means of purchase, dividend,
distribution or otherwise, hereinafter collectively referred to as
the “ Shares ”); and
WHEREAS, the Company has required,
as condition to it entering into the Merger Agreement, that the
Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of
the Company’s execution of the Merger Agreement and the
mutual covenants and agreements herein contained and other good and
valuable consideration, and intending to be legally bound hereby,
it is agreed as follows:
1.
Vote .
1.1
Agreement to Vote . The Stockholder hereby revokes any
and all previous proxies with respect to the Stockholder’s
Shares and irrevocably agrees to vote and otherwise act (including
pursuant to written consent) with respect to all of such
Shares: (i) in favor of the amendment to the Certificate
of Designations, Preferences and Rights of Series D
Convertible Preferred Stock of the Company, filed with the
Secretary of State of Delaware on August 31, 2006 (the “
Original Certificate ”), attached hereto as
Exhibit B (the “ Amendment ”),
(ii) in favor of the adoption and approval of the Merger
Agreement (or any amended version or versions of the Merger
Agreement, and (iii) in accordance with the recommendation of
the Board of Directors of the Company in connection with any Target
Acquisition Proposal, and, in each case, take all actions required
in furtherance thereof, at any meeting or meetings of the
stockholders of the Company, and at any adjournment, postponement
or continuation thereof, at which the such matter is submitted for
the consideration and vote of the stockholders of the
Company. The Stockholder shall not enter into any agreement
or understanding with any person or entity the effect of which
would be inconsistent or violative of the provisions and agreements
contained in this Section 1 . The obligations of
the Stockholder under this Section 1 shall remain in
effect with respect to the Shares until, and shall terminate upon,
the earlier to occur of the Effective Time or the termination of
the Merger Agreement in accordance with its terms. The
Stockholder hereby agrees to execute such additional documents as
the Company may reasonably request to effectuate the
foregoing.
1.2
Irrevocable Proxy . Concurrently with the execution of
this Agreement, the Stockholder agrees to deliver to the Company a
proxy in the form attached hereto as Exhibit C (the
“ Proxy ”), which shall be irrevocable to the
fullest extent permissible by applicable law, with respect to the
Shares.
2.
Representations and Warranties of the Stockholder
. The Stockholder represents and warrants to the Company as
follows:
2.1
Ownership of Shares . On the date hereof, the Shares
are all of the Shares currently Beneficially Owned by the
Stockholder. The Stockholder has sole voting power and sole
power to issue instructions with respect to the matters set forth
in Section 1 hereof, sole power of disposition, sole
power of conversion and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of
the Shares set forth on Exhibit A hereto, with no
limitations, qualifications or restrictions on such rights, subject
to applicable securities laws and the terms of this
Agreement. The Stockholder currently has, and at all times
during the term hereof will have, good, valid and marketable title
to the Shares, free and clear of all liens, encumbrances and
security interests (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable
federal and state securities laws) and free of other restrictions,
options, rights to purchase or other claims that would adversely
affect the ability of the Stockholder to perform its obligations
hereunder or pursuant to which the Stockholder could be required to
sell, assign or otherwise transfer the Shares.
2.2
Authority; Binding Agreement . The Stockholder has the
full legal right, power and authority to enter into and perform all
of its obligations under this Agreement. This Agreement has been
duly executed and delivered by the Stockholder and constitutes a
legal, valid and binding agreement of the Stockholder, enforceable
in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors’
rights and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). Neither the execution and delivery of this Agreement
nor the consummation by the Stockholder of the transactions
contemplated hereby will (i) violate, or require any consent,
approval or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to the
Stockholder or the Shares or (ii) constitute a violation of,
conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other
restriction of any kind to which the Stockholder is a party or by
which the Stockholder is bound, in each case the effect of which
would adversely affect the ability of the Stockholder to perform
his obligations hereunder.
3.
Certain Covenants of the Stockholder . Except
in accordance with the provisions of this Agreement, the
Stockholder agrees with and covenants to the Company as
follows:
3.1
Transfer . Prior to the termination of this Agreement,
except as otherwise provided herein, the Stockholder shall
not: (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift,
pledge, assignment, encumbrance or other disposition), whether
directly or indirectly (including by operation of law), or consent
to any transfer of, any or all of the Shares or any interest
therein, except pursuant to the Merger; (ii) grant any
proxies, powers-of-attorney or other authorizations or consents
with respect to the Shares, deposit the Shares into a voting trust
or enter into a voting agreement or similar arrangement with
respect to the Shares; or (iii) enter into any contract,
option or other agreement or understanding with respect to any
transfer of any or all such Shares or any interest
therein.
3.2
Stop Transfer . The Stockholder hereby agrees with and
covenants to each other party hereto that the Stockholder shall not
request that the Company register the transfer (book entry or
otherwise) of any certificate or uncertified interest representing
any of its Shares, unless such transfer is
2
made in compliance with this
Agreement.
3.3
Notifications . The Stockholder shall, while this
Agreement is in effect, notify the Company promptly, but in no
event later than two business days, of the number of any shares of
Company Common Stock acquired by the Stockholder after the date
hereof.
3.4
Waiver of Claims . The Stockholder agrees that
it will not bring, commence, institute, maintain, prosecute,
participate in or voluntarily aid any action, claim, suit or cause
of action, in law or in equity, in any court or before any
governmental entity, which challenges the validity of or seeks to
enjoin the operation of any provision of this Agreement; provided,
that the Stockholder may defend against, contest or settle any such
action, claim, suit or cause of action brought against the
Stockholder that relates to the Stockholder’s capacity as a
director or officer of the Company.
3.5
Appraisal Rights . To the extent permitted by
applicable law, the Stockholder shall not exercise any rights
(including, without limitation, under Section 262 of the DGCL)
to demand appraisal of any Shares that may arise with respect to
the Merger.
3.6
Additional Voting Agreements . If requested by the
Company, the Stockholder agrees to use its commercially reasonable
efforts to cause the other beneficial owners of any shares of
capital stock of the Company over which the Stockholder has shared
voting or dispositive power (such shares, the “Shared
Securities”) to execute stock voting agreements and
Irrevocable Proxies, in substantially similar form to this
Agreement and the Irrevocable Proxy attached hereto, prior to the
Effective Time. If not so requested by the Company, the
Stockholder nonetheless agrees to use its commercially reasonable
efforts to cause the Shared Securities to be voted in a manner
consistent with this Agreement.
4.
Effect of Purported Transfer . The Company
agrees with, and covenants with, the Stockholder that the Company
shall not register the transfer (book entry or otherwise) of any
certificate or uncertified interest representing any of the Shares,
unless such transfer is made in compliance with this
Agreement. The parties hereto agree that any transfer of the
Shares made other than in compliance with this Agreement shall be
null and void. Any such transfer shall convey no interest in
any of the Shares purported to be transferred, and the transferee
shall not be deemed to be a stockholder of the Company nor entitled
to receive a new share certificate or any rights, dividends or
other distributions on or with respect to such Shares.
5.
Termination. This Agreement shall terminate, and
neither the Company nor the Stockholder shall have any
righ
