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. Executi
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