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, arrangement or restriction of any kind to which
Mission is a party or bound, except, in t
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