Exhibit 10.1
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is dated as of April 3, 2005, by
and among Petrohawk Energy Corporation (“ Petrohawk
Energy Corporation ” or “Petrohawk”),
Mission Resources Corporation, a Delaware corporation (“
Mission ”) and Harbert Distressed Investment
Master Fund, Ltd., an exempt company organized in the Cayman
Islands (the “ Stockholder ”).
WHEREAS, Stockholder desires that
Petrohawk, Petrohawk Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Petrohawk (“
Purchaser ”), and Mission, enter into the
Agreement and Plan of Merger dated the date hereof (the “
Merger Agreement ”); undefined capitalized
terms herein are defined in the Merger Agreement) providing for the
merger of Mission with and into Purchaser (the “
Merger ”) upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, Stockholder is executing
this Agreement as an inducement to Petrohawk to enter into and
execute the Merger Agreement (and this Agreement shall not be
effective until the parties to the Merger Agreement execute the
Merger Agreement); and
WHEREAS, the Board of Directors of
Mission has adopted such resolutions as are necessary so that the
provisions of Section 203 of the DGCL are inapplicable to the
execution and performance of this Agreement;
NOW, THEREFORE, in consideration of
the execution and delivery by Petrohawk of the Merger Agreement and
the mutual covenants, conditions and agreements contained herein
and therein, the parties agree as follows:
1.
Representations and
Warranties.
(a)
Stockholder
represents and warrants to Petrohawk as follows:
(i)
Stockholder is
the record and beneficial owner of that number of shares of capital
stock of Mission set forth opposite its name on Schedule A
(together with any other shares of other capital stock of Mission
acquired after the date hereof including through the exercise of
any stock options, warrants or similar instruments) being
collectively referred to herein as the “
Subject Shares
”) and the
other securities exercisable or exchangeable for such capital stock
listed on Schedule A (the “
Other Securities
” and,
together with the Subject Shares, the “
Covered Securities
”).(1)
Stockholder has the sole right to vote and Transfer (as
defined herein) the Covered Securities set forth opposite its name
on Schedule A , and none of such Covered Securities is
subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or the Transfer of the
Subject Shares, except (A) as provided by this Agreement (it being
understood that any pledge of the Pledged Shares (as defined below)
shall not be a breach of this representation) and (B) those arising
under applicable securities laws. Stockholder has all
requisite power and authority to enter into this Agreement and to
perform its obligations hereunder. Stockholder is duly
organized,
(1) Covered Securities do not
include shares held by Alpha US Sub Fund VI, LLC, a separately
managed account which as of the date hereof owns approximately
81,395 shares of capital stock of Mission.
validly existing
and in good standing under the laws of its jurisdiction of
organization. The execution and delivery of this Agreement by
Stockholder and the performance by Stockholder of its obligations
hereunder have been duly authorized by all necessary action on the
part of Stockholder. This Agreement has been duly executed
and delivered by, and constitutes a valid and binding agreement of,
Stockholder, enforceable against Stockholder in accordance with its
terms, except as enforcement may be limited by or subject to the
effects of bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting the rights of creditors and of
general principles of equity.
(ii)
Neither the execution and delivery
of this Agreement nor the performance by Stockholder of its
obligations hereunder will result in a violation of, or a default
under, or conflict with, (A) any provision of its certificate of
incorporation, bylaws, partnership agreement, limited liability
company agreement or similar organizational documents, (B) any
contract, trust, commitment, agreement, understanding, arrangement
or restriction of any kind (other than as may relate to the Pledged
Shares but subject to the proviso set forth in (iv) below) to which
Stockholder is a party or bound or to which the Covered Securities
are subject, except, in the case of clause (B), as would not
prevent, delay or otherwise materially impair Stockholder’s
ability to perform its obligations hereunder. Execution,
delivery and performance of this Agreement by Stockholder will not
violate, or require any consent, approval or notice under, any
provision of any judgment, order, decree, statute, law, rule or
regulation applicable to Stockholder or the Covered Securities,
except (x) 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 (y) as would not reasonably be
expected to prevent, delay or otherwise materially impair
Stockholder’s ability to perform its obligations
hereunder.
(iii)
[Intentionally omitted]
(iv)
The Covered Securities and the
certificates representing such Covered Securities are held by
Stockholder, or by a nominee or custodian for the benefit of
Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for (A)
any such encumbrances arising hereunder, or (B) any such
encumbrances arising pursuant to the pledge of any Covered
Securities by Stockholder to a financial institution or a brokerage
firm (the “ Pledged Shares ”); provided,
however, that Stockholder represents that any such arrangement
regarding such Pledged Shares shall not prevent, delay or otherwise
materially impair Stockholder’s ability to execute and
deliver this Agreement or perform its obligations hereunder and
Stockholder shall use its reasonable efforts to obtain an
acknowledgment by the pledgee of the terms of this Agreement and
such pledgee’s agreement to vote the Pledged Shares (if and
to the extent the voting power of the Pledged Shares is being or to
be exercised by pledgee) in accordance with Section 2.
(v)
No broker, investment banker,
financial advisor or other person is entitled to any
broker’s, finder’s, financial advisor’s or other
similar fee or commission based upon arrangements made by or on
behalf of Stockholder in connection with its entering into this
Agreement. Stockholder shall have no obligation or
liability of any kind with
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respect to any fee, commission or
other amount of any kind incurred or payable by or on behalf of
Petrohawk or Mission in connection with the Merger.
(vi)
Stockholder
understands and acknowledges that Petrohawk is entering into the
Merger Agreement in reliance upon Stockholder’s execution and
delivery of this Agreement. Mission and Petrohawk
understand and acknowledge that Stockholder is entering into this
Agreement in reliance upon Petrohawk’s and Mission’s
execution and delivery of the Merger Agreement and intended
consummation of the Merger.
(b)
Petrohawk
represents and warrants to Stockholder and Mission
that:
(i)
The execution and
delivery of this Agreement and the Merger Agreement (the
“ Transaction
Documents ”) by Petrohawk and the
performance by Petrohawk of its obligations thereunder and the
consummation of the transactions contemplated thereby have been
duly authorized by all necessary action on the part of Petrohawk.
Each of the Transaction Documents has been duly executed and
delivered by, and constitutes a valid and binding agreement of,
Petrohawk, enforceable against Petrohawk in accordance with its
terms, except as enforcement may be limited by or subject to the
effects of bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting the rights of creditors and of
general principles of equity.
(ii)
Neither the
execution and delivery of the Transaction Documents nor the
performance by Petrohawk of its obligations thereunder will result
in a violation of, or a default under, or conflict with, (A) any
provision of its certificate of incorporation, bylaws, partnership
agreement, limited liability company agreement or similar
organizational documents, (B) any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which Petrohawk is a party or bound, except, in the case of clause
(B), as would not prevent, delay or otherwise materially impair
Petrohawk’s ability to perform its obligations thereunder or
consummate the Merger. Execution, delivery and performance of
the Transaction Documents by Petrohawk will not violate, or require
any consent, approval or notice under, any provision of any
judgment, order, decree, statute, law, rule or regulation
applicable to Petrohawk or the Covered Securities, except
(x) 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 (y) as would not reasonably be expected to
prevent, delay or otherwise materially impair Petrohawks’s
ability to perform its obligations thereunder or consummate the
Merger.
(iii)
There is no
action, claim, suit, demand, hearing, notice of violation or
deficiency, or proceeding (including any investigation or partial
proceeding, such as a deposition), domestic or foreign, pending, or
to the knowledge of Petrohawk threatened, that could prevent the
consummation of, materially impair or materially delay the Merger
or any of the transactions contemplated hereby.
(c)
Mission
represents and warrants to Stockholder and Petrohawk
that:
(i)
The execution and
delivery of the Transaction Documents by Mission and the
performance by Mission of its obligations thereunder and
consummation of the
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transactions
contemplated thereby have been duly authorized by all necessary
action on the part of Mission. Each of the Transaction Documents
has been duly executed and delivered by, and constitutes a valid
and binding agreement of, Mission, enforceable against Mission in
accordance with its terms, except as enforcement may be limited by
or subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
the rights of creditors and of general principles of
equity.
(ii)
Neither the
execution and delivery of the Transaction Documents nor the
performance by Mission of its obligations thereunder will result in
a violation of, or a default under, or conflict with, (A) any
provision of its certificate of incorporation, bylaws, partnership
agreement, limited liability company agreement or similar
organizational documents, (B) any contract, trust, commitment,
agreement, understanding, arrangem
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