Exhibit
2.2
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this “
Agreement ”) dated as of April 30, 2008, by and
among Stone Energy Corporation, a Delaware corporation (“
Parent ”), and Comstock Resources, Inc. (the “
Stockholder ”).
WHEREAS, the Stockholder desires that
Bois d’Arc Energy, Inc., a Nevada corporation (the “
Company ”), Parent and Stone Energy Offshore, L.L.C.,
a Delaware limited liability company and a wholly owned subsidiary
of Parent (“ Merger Sub ”), enter into an
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
the Company with and into Merger Sub, with Merger Sub continuing as
the surviving limited liability company, upon the terms and subject
to the conditions set forth in the Merger Agreement (the “
Merger ”); and
WHEREAS, the Stockholder is executing
this Agreement as an inducement to Parent and Merger Sub to enter
into and execute the Merger Agreement.
NOW, THEREFORE, in consideration of
the execution and delivery by Parent 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) The Stockholder represents
and warrants to Parent as follows:
(i) The Stockholder is the record or
beneficial owner of that number of shares of capital stock of the
Company set forth opposite the Stockholder’s name on
Schedule A (such shares, whether owned by the
Stockholder or a permitted transferee pursuant to
Section 5(a) , together with any shares of capital
stock of the Company issuable upon the exercise of options,
warrants or other rights (whether or not contingent) held by the
Stockholder as set forth on Schedule A , referred to
herein as the “ Subject Shares ”). The Subject
Shares constitute the only shares, with respect to which the
Stockholder is the record or beneficial owner, of capital stock of
the Company or options, warrants or other rights (whether or not
contingent) to acquire such shares of capital stock of the Company
that are or may be entitled to vote on the Merger or the Merger
Agreement at any meeting of the Company’s stockholders called
to vote upon the Merger or the Merger Agreement. The Stockholder
has the sole right to vote and Transfer (as defined herein) the
Subject Shares set forth opposite its name on
Schedule A , and none of such Subject Shares 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. The Stockholder has all requisite
power and authority to enter into this Agreement and to perform its
obligations hereunder. The 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 the
Stockholder and the performance by the Stockholder of its
obligations hereunder have been duly authorized by all
necessary
action on the
part of the Stockholder. This Agreement has been duly executed and
delivered by, and (assuming due authorization, execution and
delivery by Parent) constitutes a valid and binding agreement of,
the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as such enforcement may be subject to or
limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other Laws, now or hereafter in effect, affecting
creditors’ rights generally and (ii) the effect of
general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity) (collectively,
the “ Enforceability Exceptions ”).
(ii) Neither the execution and
delivery of this Agreement nor the performance by the 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, as applicable, or (B) any contract, trust,
commitment, agreement, understanding, arrangement or restriction of
any kind to which the Stockholder is a party or bound or to which
the Subject Shares are subject, except, in the case of clause (B),
as would not prevent, delay or otherwise materially impair the
Stockholder’s ability to perform its obligations hereunder.
Execution, delivery and performance of this Agreement by the
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 the Stockholder or
the Subject Shares, except (x) for any reports under Sections
13(d) and 16 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 the Stockholder’s ability to perform its
obligations hereunder.
(iii) The Subject Shares are held by
the Stockholder, or by a nominee or custodian for the benefit of
the 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 Subject
Shares by the Stockholder to a financial institution or a brokerage
firm (the “ Pledged Shares ”); provided,
however, that the Stockholder represents that any such arrangement
regarding such Pledged Shares shall not prevent, delay or otherwise
materially impair the Stockholder’s ability to execute and
deliver this Agreement or perform its obligations hereunder.
(iv) 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 the Stockholder in connection with its entering into this
Agreement.
(v) The Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of
this Agreement.
2
(b) Parent represents and
warrants to the Stockholder that the execution and delivery of this
Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of Parent.
2. Voting Agreements.
During the Term (as defined below), at any meeting of stockholders
of the Company or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval
(including by written consent) is sought therefor, the Stockholder
shall, including by executing a written consent solicitation if
requested by Parent, vote (or cause to be voted) the Subject
Shares: (a) in favor of the Merger, the approval and adoption
by the Company of the Merger Agreement and the terms thereof and
each of the other transactions contemplated thereby and
(b) against any transaction, agreement, matter or any
Acquisition Proposal that would impede, interfere with, delay,
postpone or attempt to discourage the Merger and the Merger
Agreement.
3. Irrevocable Proxy.
The Stockholder hereby appoints Parent as its proxy during the Term
to vote all of the Stockholder’s Subject Shares at any
meeting of stockholders of the Company (including any adjournments
and postponements thereof) on the matters described in Section
2 . This proxy is coupled with an interest and is irrevocable
until the end of the Term; provided that the Stockholder may grant
revocable proxies voting its shares in accordance with
Section 2 .
4. Revocation of Other
Proxies. To the extent inconsistent with the other provisions
of this Agreement or the Merger Agreement, the Stockholder hereby
revokes any and all previous proxies with respect to its Subject
Shares.
5. Other Covenants . The
Stockholder agrees with, and covenants to, Parent as follows:
(a) During the Term, the
Stockholder shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, “
Transfer ”), or consent to any Transfer of, any
Subject Shares or any interest therein, except pursuant to the
Merger, (ii) enter into any contract, option or other
agreement with respect to any Transfer of any or all of the Subject
Shares or any interest therein, (iii) except as expressly
permitted by this Agreement, grant any proxy, power-of-attorney or
other authorization in or with respect to the Subject Shares or
(iv) deposit the Subject Shares into a voting trust or enter into a
voting agreement or voting arrangement with respect to the Subject
Shares; provided, that the Stockholder may Transfer any of the
Subject Shares to any Person if the transferee of such Subject
Shares evidences in a writing reasonably satisfactory to Parent
such transferee’s agreement to the terms hereof, including
the voting obligations with respect to such Subject Shares set
forth in Section 2 ; provided, further, that a pledge
of Pledged Shares made in accordance with Section 1(a)
shall not be deemed to be a violation of the restrictions in this
Section 5(a) .
(b) During the Term, the
Stockholder shall not, and shall not authorize or permit any of its
representatives to, directly or indirectly (i) in any manner
acquire, agree to acquire or make any proposal to acquire any
securities or property of the Company, any of the Company’s
Subsidiaries, Parent or any of Parent’s Subsidiaries or
(ii) propose to enter into, directly or indirectly, any
merger, consolidation, recapitalization, business combination,
partnership, joint
3
venture
or other similar transaction involving the Company, any of the
Company’s Subsidiaries, Parent or any of Parent’s
Subsidiaries, including making any Acquisition Proposal for the
Stockholder’s own account or benefit. In addition, in
the event that during the Term the Stockholder receives (A) an
Acquisition Proposal with respect to the Company or (B) a
request for information from a Person that has made, or the
Stockholder reasonably believes may be contemplating, an
Acquisition Proposal with respect to the Company, as promptly as
practicable after the receipt thereof (and in no event more than 24
hours after the receipt thereof), the Stockholder shall and shall
cause its representatives to advise Parent in writing of the
receipt of such Acquisition Proposal or request for information and
provide to Parent all materials received by and all information
provided by the Stockholder in connection therewith and shall take
all such other actions as would be required by Section 5.3(b)
of the Merger Agreement. The Stockholder hereby acknowledges and
agrees that all restrictions and obligations applicable to the
Company under Section 5.3 of the Merger Agreement shall also
be applicable to the Stockholder; provided, however, that nothing
contained in this Section 5(b) shall prevent the
Stockholder or any person affiliated with the Stockholder who is a
director of the Company or designated by the Stockholder as a
director of the Company, when acting in his capacity as a director
of the Company, from exercising his fiduciary duties as a director
of the Company including, without limitation, taking any actions
permitted under Section 5.3 of the Merger
Agreement.
(c) During the Term, the
Stockholder shall cooperate with the parties to the Merger
Agreement in connection with the matters described in
Sections 5.5 and 5.6 of the Merger Agreement, and the
Stockholder shall use its commercially reasonable efforts to
provide all necessary information and take all necessary actions in
connection therewith.
(d) Without the prior written
consent of Parent, for a period of one year following the Closing
Date (the “ Lock-Up Period ”), the Stockholder
shall not Transfer, directly or indirectly, any securities of
Parent in any transaction or series of related transactions, except
for Transfers pursuant to Section 6(c) and Transfers
resulting in a bona fide pledge of any voting securities of Parent
to a financial institution or a brokerage firm; provided, however,
that such pledge shall not materially prevent, delay or otherwise
impair the Stockholder’s ability to perform its obligations
under this Agreement. In addition, following the Closing Date,
until the earlier of (i) three years following the Closing
Date and (ii) such time as the Stockholder beneficially owns
less than 5% of the outstanding voting securities of Parent,
without the prior written consent of Parent, the Stockholder shall
not Transfer, directly or indirectly, any securities of Parent in
any transaction or series of related transactions except in a
Transfer (A) that the Stockholder reasonably believes would not
result in the transferee holding 5% or more of the outstanding
voting securities of Parent; provided, that the Stockholder may
rely solely on reports filed with respect to any securities of
Parent with the SEC under Sections 13(d) or 13(g) of the Exchange
Act in establishing such reasonable belief
|
