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Exhibit 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT , dated as of January 19, 2007 (this
"Agreement"), is between Sterling Energy plc., a company
incorporated in England and Wales ("Buyer"), and the other party
signatory hereto (the "Stockholder").
WHEREAS , Whittier Energy Corporation, a Nevada
corporation (the "Company"), Buyer and a subsidiary to be formed by
Buyer ("Merger Sub") have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"),
pursuant to which, among other things, Merger Sub will be merged
with and into the Company, with the Company surviving as a
wholly-owned subsidiary of Buyer (the "Merger") and each issued and
outstanding share (other than Dissenting Shares) of Company Common
Stock will be converted into the right to receive the Merger
Consideration;
WHEREAS , as of the date hereof the Stockholder owns of
record, and has the right to vote and transfer the number of such
shares of Company Common Stock set forth beside such
Stockholder’s name on the signature page hereto (such shares
of Company Common Stock, together with any other shares of Company
Common Stock acquired by such Stockholder by purchase or otherwise
from the date hereof through the termination of this Agreement, are
collectively referred to herein as the "Shares");
WHEREAS , as a condition and inducement to Buyer’s
willingness to enter into the Merger Agreement, Buyer has requested
that the Stockholder agree to enter into this Agreement; and
WHEREAS , capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the
Merger Agreement.
NOW, THEREFORE , the parties hereto agree as follows:
ARTICLE 1.
VOTING AGREEMENT; GRANT OF PROXY
Section
1.01
Voting Agreement . (a) During the Term (as defined
below) of this Agreement, Stockholder hereby irrevocably and
unconditionally agrees to vote or cause to be voted all Shares that
such Stockholder is entitled to vote to approve and adopt the
Merger Agreement, the Merger and the transactions contemplated
thereby (collectively, the "Proposed Transaction") at any annual or
special meeting of the stockholders of the Company, and at any
adjournment thereof, at which the Proposed Transaction is submitted
for the consideration and vote of the stockholders of the Company
("Company Stockholder Meeting").
(b)
Stockholder hereby agrees that it shall vote or cause to be voted
its Shares against the approval of (i) any Alternative Transaction
Proposal, (ii) any extraordinary dividend or distribution by the
Company or any of the Company Subsidiaries, (iii) any change in the
capital structure of the Company or any of the Company Subsidiaries
(other than pursuant to the Merger Agreement), (iv) any merger,
consolidation, sale of assets, business combination, share
exchange, reorganization or recapitalization of the Company or any
of the Company
Subsidiaries, with or involving any party other
than as contemplated by the Merger Agreement, (v) any liquidation
or winding up of the Company, (vi) any change in the
composition or membership of the Company’s Board of
Directors, other than as permitted by the Merger Agreement, and
(vii) any other action that may reasonably be expected to
impede, interfere with, delay, postpone or discourage the
consummation of the Proposed Transaction or result in a breach of
any of the covenants, representations, warranties or other
obligations or agreements of the Company under the Merger
Agreement, that would adversely affect the Company or Bidder or
their respective abilities to consummate the transactions
contemplated by the Merger Agreement.
(c)
Stockholder hereby agrees that any agreement between or among the
other holders of Company Common Stock or any of them that could be
construed to limit its rights to enter into this Agreement, perform
hereunder, or restrict the Company’s ability to consummate
the Merger is amended to the full extent necessary to assure that
entering into this Agreement and performance hereunder are
permitted under each such agreement without breach thereof.
Section
1.02
Irrevocable Proxy . Stockholder hereby
irrevocably and unconditionally revokes any and all previous
proxies granted with respect to its Shares. By entering into
this Agreement, Stockholder hereby irrevocably and unconditionally
grants a proxy appointing a designee of Buyer ("Designee") as such
Stockholder’s attorney-in-fact and proxy, with full power of
substitution, for and in such Stockholder’s name, to vote,
express consent or dissent, or otherwise to utilize such voting
power on the matters described in Section 1.01 as Designee or
its proxy or substitute shall, in Designee’s sole discretion,
deem proper with respect to Stockholder’s Shares. The
proxy granted by Stockholder pursuant to this Section 1.02 is
coupled with an interest and is irrevocable and is granted in
consideration of Buyer’s entering into this Agreement and the
Merger Agreement and incurring certain related fees and
expenses. The Stockholder hereby ratifies and approves of
each and every action taken by a Designee pursuant to the foregoing
proxy. Stockholder shall perform such further acts and
execute such further documents as may be required to vest in
Designee the sole power to vote such Stockholder’s
Shares. Notwithstanding the foregoing, the proxy granted by
Stockholder shall terminate at the end of the Term.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and
warrants to Buyer that:
Section
2.01
Authorization . (a) If Stockholder is not an
individual, the Stockholder has full legal power, authority and
right to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly executed
and delivered by the Stockholder, and the Agreement and the
transactions contemplated hereby have been duly authorized by all
necessary corporate or similar action. This Agreement
constitutes a valid and binding Agreement of such Stockholder,
enforceable against the Stockholder in accordance with its
terms.
(b)
If Stockholder is married and the Shares set forth on the signature
page hereto opposite such Stockholder’s name constitute
community property under applicable laws, this
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Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of,
such Stockholder’s spouse. If this Agreement is being
executed in a representative or fiduciary capacity, the Person
signing this Agreement has full power and authority to enter into
and perform this Agreement.
(c)
As of the date hereof and for as long as this Agreement remains in
effect (including the date of the Company Stockholder Meeting),
such Stockholder has full legal power, authority and right to vote
all of the Shares then owned of record or beneficially by such
Stockholder in favor of the approval and authorization of the
Proposed Transaction without the consent or approval of, or any
other action on the part of, any other Person. Without
limiting the generality of the foregoing, the Stockholder has not
entered into any voting agreement (other than this Agreement) with
any Person with respect to any of the Shares, granted any Person
any proxy (revocable or irrevocable) or power of attorney with
respect to any of the Shares, deposited any of the Shares in a
voting trust or entered into any arrangement or agreement with any
Person limiting or affecting its legal power, authority or right to
vote the Shares on any matter.
Section
2.02
Non-Contravention . The execution, delivery and
performance by Stockholder of this Agreement and the consummation
by Stockholder of the transactions contemplated hereby do not and
shall not (i) if Stockholder is not an individual, violate any
organizational documents of Stockholder, (ii) violate any
applicable law, rule, regulation, judgment, injunction, order or
decree, (iii) require any consent or other action by any Person
under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any
benefit to which Stockholder is entitled under any provision of any
agreement or other instrument binding on Stockholder, (iv) result
in the imposition of any Lien on any asset of Stockholder, or (v)
violate any other agreement, arrangement or instrument to which
Stockholder is a party or by which Stockholder (or any of its
assets) is bound, except (A) for any reports under Sections 13(d)
of the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby or (B) as would
not prevent, delay or otherwise impair Stockholder’s ability
to perform its obligations hereunder.
Section
2.03
Ownership of Shares . Stockholder is the beneficial
and record owner of, and has the right to vote, the Shares, free
and clear of any Lien, option, right of first refusal, co-sale
rights or any other limitation or restriction (including any
restriction on the right to vote or otherwise dispose of the
Shares) except for any such encumbrances arising hereunder.
The term "beneficial owner" and all correlative expressions are
used in this Agreement as defined in Rules 13d-3 and 16a-1 under
the Securities Exchange Act of 1934, as amended. None of the
Shares is subject to any voting trust or other agreement,
arrangement or instrument with respect to the voting of such
Shares.
Section
2.04
Total Shares . Except for the Shares and the other
securities of the Company convertible or exchangeable for shares of
Company Common Stock set forth beside Stockholder’s name on
the signature page hereto, Stockholder does not beneficially own
any other shares of Company Co
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