Exhibit 2.3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this “
Agreement ”) dated as of April 30, 2008, by and
among Stone Energy Corporation, a Delaware corporation (“
Parent ”), and the Stockholders named on
Schedule A hereto (the “ Stockholders
”).
WHEREAS, the Stockholders desire 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 Stockholders are
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) Each 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 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.
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(b) Parent represents and
warrants to the Stockholders 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 Stockholders
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.
Each Stockholder hereby appoints Parent as its proxy during
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