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, delivery and performance of
the Transaction Documents by Mission will not violate, or require
any consent, approval or notice under, any provision of any
judgment, order, decree, statute, law, rule or
regulati
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