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 regulation applicable to
Mission or the Covered Securities, except (x) for any reports
under Sections 13(d) of the Exchange Act as may be required in
con
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