Exhibit 10.2
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 Stellar Funding, Ltd., a Cayman
Islands company (“Stellar”) and Guggenheim Capital,
LLC, a Delaware limited liability company (“GC”)
(Stellar and GC, each a Stockholder and together, the “
Stockholders ”).
WHEREAS, Stockholders desire 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 Agreemen”) ”; 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, Stockholders are 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)
Each Stockholder
represents and warrants to Petrohawk as follows:
(i)
Stockholder is
the record (through a nominee or pledgee) 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
”).
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 and
(C) in the case of Stellar, those arising under the indenture
and management arrangements to which Stellar is a party (the
“ Stellar
Arrangements ”) and under the
February 25 th PSA. Stockholder has all
requisite power and authority to enter into this Agreement and to
perform its obligations hereunder. Stockholder is
duly
organized,
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, or, in the case of Stellar, for the benefit of the
indenture trustee pursuant to the Stellar Arrangements, 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 (including, in the case of Stellar, the
indenture trustee pursuant to the Stellar Arrangements) 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.
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(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 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 Stockholders 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.
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(c)
Mission
represents and warrants to Stockholders 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 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, arrangement or restriction of any kind to
which Mission is a party or bound, except, in the case of clause
(B), as would not prevent, delay or otherwise materially impair
Mission’s ability to perform its obligations thereunder or
consummate the Merger. Execution, deliver
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