EXHIBIT 2.3
AGREEMENT TO VOTE
THIS AGREEMENT TO VOTE (this "AGREEMENT") is made and entered into this
17th day of December, by and between Natural Gas Partners V, L.P., a Delaware
limited partnership ("STOCKHOLDER"), Prize Energy Corp., a Delaware corporation
(the "COMPANY") and Magnum Hunter Resources, Inc., a Nevada corporation ("MHR").
RECITALS
A. The Company and MHR ("MHR") propose to enter into an Agreement and
Plan of Merger (the "MERGER AGREEMENT"), pursuant to which the Company will
merge with and into Pintail Energy, Inc., a wholly-owned subsidiary of MHR, with
the Company becoming a wholly-owned subsidiary of MHR, and the stockholders of
the Company will receive a combination of cash and common stock in MHR (the
"MERGER").
B. Stockholder owns 7,326,821 shares of Common Stock, par value $0.01
per share, of the Company (the "SUBJECT SHARES").
C. As an inducement to the Company and MHR to proceed with the Merger,
Stockholder has offered to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. AGREEMENT TO VOTE FOR MERGER. Stockholder agrees to vote the Subject
Shares in favor of the Merger, pursuant to the terms of the Merger Agreement, at
any meeting of the stockholders of the Company (or any adjournment or
postponement thereof) called for the purpose of considering the Merger; provided
that, Stockholder shall not be obligated to vote in favor of the Merger if the
Board of Directors of the Company shall have received an Alternative Proposal
and has determined that such proposal is a Superior Proposal in accordance with
the provisions of Section 5.4 of the Merger Agreement.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
represents and warrants to the Company as follows:
2.1 OWNERSHIP OF SHARES. Stockholder is the record and
beneficial owner of the Subject Shares, free and clear of all liens,
encumbrances, restrictions, options, warrants, rights to purchase and claims of
every kind, other than the encumbrances created by this Agreement, restrictions
on transfer under applicable Federal and state securities laws and under that
certain Amended and Restated Voting and Stockholders Agreement among the
Company, Stockholder and certain other stockholders of the Company.
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2.2 POWER; BINDING AGREEMENT; NO CONFLICT. Stockholder has the
authority under its partnership agreement and under applicable law to enter into
and perform all of Stockholder's obligations under this Agreement. This
Agreement has been duly executed and delivered by Stockholder and constitutes a
legal, valid and binding agreement of Stockholder, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws,
now or hereafter in effect affecting creditors' rights and remedies generally or
general principles of equity. Neither the execution or delivery of this
Agreement nor the consummation by Stockholder of the transactions contemplated
hereby will constitute a violation of, conflict with or constitute a default
under, any contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which Stockholder is a party or by which Stockholder
is bound.
3. TERMINATION. This Agreement shall terminate on the earliest to occur
of the following:
(a) the date on which the parties mutually agree in writing to
terminate this Agreement;
(b) the date on which the transactions contemplated by the
Merger Agreement are consummated;
(c) prior to the consummation of the transactions contemplated
by the Merger Agreement, upon the termination of the Merger Agreement pursuant
to its terms; and
(d) June 30, 2002.
4. NOTICES. All notices or other communications required or permitted
hereunder shall be given in the manner, and to the notice addresses, provided
for in the Merger Agreement (and with respect to Stockholder, at the notice
address provided for in the form of Registration Rights Agreement attached to
the Merger Agreement).
5. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter contained
herein and supersedes all prior agreements and understandings between the
Parties with respect to such subject matter. This Agreement may not be modified,
amended, altered or supplemented except by an agreement in writing executed by
all of the parties hereto.
6. GOVERNING LAW. This Agreement, and all matters relating hereto,
shall be governed by, and construed in accordance with the laws of the State of
Delaware, without giving effect to the principles of conflicts of laws thereof.
7. SPECIFIC ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
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8. THIRD PARTY BENEFICIARIES. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the Parties any legal
or equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
COMPANY
PRIZE ENERGY CORP.
By: /s/ Philip B. Smith
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Philip B. Smith
Chairman and Chief Executive Officer
MHR
MAGNUM HUNTER RESOURCES, INC.
By: /s/ Gary C. Evans
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Name: Gary C. Evans
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Title: Chairman, President and
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Chief Executive Officer
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STOCKHOLDER
NATURAL GAS PARTNERS V, L.P.
By: G.F.W. Energy V, L.P., general partner
By: GFW V, L.L.C., general partner
By: /s/ David R. Albin
-----------------------------------------
David R. Albin, Authorized Member
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