UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of Earliest Event Reported): April 30, 2008
COMSTOCK
RESOURCES, INC.
(Exact
Name of Registrant as Specified in Charter)
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STATE
OF NEVADA
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001-03262
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94-1667468
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(State
or other
jurisdiction
incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
Number)
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5300
Town And Country Boulevard
Suite
500
Frisco,
Texas 75034
(Address
of principal executive offices)
(972)
668-8800
(Registrant's
Telephone No.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry
Into a Material Definitive Agreement.
The
Stockholder Agreement
Comstock
Resources, Inc. (the "Company") has entered
into a Stockholder Agreement, dated as of April 30, 2008 (the "Stockholder
Agreement"), with Stone Energy Corporation ("Stone Energy")
concurrent with Stone Energy's entering into an Agreement and Plan of Merger,
dated as of April 30, 2008 (the "Merger Agreement"),
with Bois d'Arc Energy, Inc. ("Bois
d'Arc").
The
Merger Agreement contemplates that Bois d'Arc, a 49% owned subsidiary of the
Company, will be merged with and into a subsidiary of Stone Energy (the "Merger"), and each
outstanding share of Bois d'Arc common stock shall be converted into the right
to receive (a) 0.165 shares of the common stock of Stone Energy, and (b) cash in
an amount equal to $13.65.
By
entering into the Stockholder Agreement, the Company has agreed to vote in favor
of the merger. The Company has made various representations,
warranties and covenants in the Stockholder Agreement, including, among others,
agreeing to a lock-up period of one year during which the Company has agreed to
not sell shares of Stone Energy acquired by the Company as a result of the
Merger, subject to limited exceptions.
Consummation
of the Merger is subject to various conditions, including, among others, the
approval and adoption of the Merger Agreement by the Company's and Stone
Energy's stockholders, regulatory approvals and other customary
conditions.
The
foregoing description of the Stockholder Agreement does not purport to be
complete and is qualified in its entirety by reference to the full text of the
Stockholder Agreement, which is filed as Exhibit 10.1
hereto and is incorporated herein by reference.
Item
7.01. Regulation FD
Disclosure.
On
April 30, 2008, Comstock Resources, Inc. issued a press release announcing
that its 49% owned subsidiary, Bois d'Arc Energy, Inc. had entered into a
definitive merger agreement and that the Company had entered into a stockholder
agreement in which it had agreed to vote in favor of the Merger, a copy of which
is furnished as Exhibit 99.1.
Item
9.01. Financial Statements and
Exhibits.
(d)
Exhibits.
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10.1
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Stockholder
Agreement, dated as of April 30, 2008, by and among Stone Energy
Corporation and Comstock Resources,
Inc.
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99.1
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Press
release dated April 30, 2008.
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In
accordance with general instruction B.2 to Form 8-K, the information in
this Form 8-K under Item 7.01 (Regulation FD Disclosure) shall be deemed
"furnished" and not "filed" with the Securities and Exchange Commission for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended,
or otherwise subject to the liabilities of that section.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
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COMSTOCK
RESOURCES, INC.
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Dated:
April 30, 2008
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By:
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/s/
M. JAY ALLISON
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M.
Jay Allison
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President
and Chief Executive Officer
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INDEX
TO EXHIBITS
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10.1
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Stockholder
Agreement, dated as of April 30, 2008, by and among Stone Energy
Corporation and Comstock Resources,
Inc.
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99.1
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Press
release dated April 30, 2008.
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Exhibit 10.1
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.
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(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
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.
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(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, (B) that the Stockholder reasonably
believes would not result in the transferee holding 10% or more of the
outstanding voting securities of Parent and that such transferee is
acquiring such securities in the ordinary course of business and not with the
purpose nor with the effect of changing or influencing the control of Parent,
nor in connection with or as a participant in any transaction having such
purpose or effect; 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, (C) in
connection with a business combination approved by the board of directors of
Parent and/or by the securityholders of Parent, (D) pursuant to a tender or
exchange offer for voting securities of Parent by any Person other than the
Stockholder or any of its affiliates or any group including the Stockholder or
any of its affiliates that is not opposed by the board of directors of Parent,
(E) 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, or (F) upon the
liquidation or dissolution of Parent or other Transfer that is effected by
operation of law.
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(e) Without
the prior written consent of Parent, 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, the
Stockholder shall not (A) in any manner acquire, agree to acquire or make any
proposal to acquire, directly or indirectly, any securities or property of
Parent or any of its affiliates other than pursuant to a dividend or
distribution by Parent or an offering initiated by Parent to all of its
stockholders, (B) propose to enter into, directly or indirectly, any merger,
consolidation, recapitalization, business combination, partnership, joint
venture or other similar transaction involving Parent or any of its affiliates,
(C) make, or in any way participate in any “solicitation” of “proxies” (as such
terms are used in the proxy rules of the Securities and Exchange Commission) to
vote, or seek to advise or influence any person with respect to the voting of
any voting securities of Parent or any of its affiliates, (D) form, join or in
any way participate in a “group” (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any voting securities of Parent or any of its
affiliates, (E) otherwise act, alone or in concert with others, to seek to
control or influence the management, board of directors or policies of Parent,
(F) disclose any intention, plan or arrangement inconsistent with the foregoing,
or (G) advise, assist or encourage any other persons in connection with any of
the foregoing.
6. Registration Rights. (a) Parent shall
prepare and file one or more registration statements under the Securities Act,
including as permitted by Rule 415 under the Securities Act (or any similar
provision then in force) (the “Registration
Statement”) with respect to all of the shares of Parent Common Stock
received by the Stockholder in connection with the Merger pursuant to the terms
of the Merger Agreement, including any dividends, splits or adjustments thereto
(such shares, to the extent then held by the Stockholder, the “Registrable
Securities”), to permit the resale of all of the Registrable Securities
from time to time, subject to the provisions of Section 6(b);
provided that Parent shall not be obligated to prepare and file such
Registration Statement if, at such time, the Registrable Securities can be
disposed of pursuant to Rule 144(b)(i) (or any similar provision then in force)
under the Securities Act. For the avoidance of doubt, the Stockholder
shall be able to specify the plan of distribution under the Registration
Statement. A Registration Statement filed pursuant to this Section 6
shall be on such appropriate registration form of the SEC as shall be selected
by Parent. Parent will use its commercially reasonable efforts to
cause the Registration Statement filed pursuant to this Section 6 to become
effective as of the expiration of the Lock-Up Period and to be continuously
effective thereafter under the Securities Act until the earlier of (i) the time
that all Registrable Securities have been sold or disposed of pursuant to the
Registration Statement or otherwise in accordance with the terms of this
Agreement, (ii) such Registrable Securities can be disposed of pursuant to Rule
144(b)(i) (or any similar provision then in force) under the Securities Act, or
(iii) the date that is three years following the Closing Date (such period
ending on such earlier date, the “Effectiveness
Period”). In addition, Parent will use its commercially
reasonable efforts to register or qualify the Registrable Securities under such
other securities or blue sky laws of such jurisdictions as the Stockholder
reasonably requests and do any and all other acts and things that may be
reasonably necessary or advisable in connection with the disposition of the
Registrable Securities owned by Stockholder.
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(b) If the
Stockholder proposes to resell some or all of the Registrable Securities
pursuant to the Registration Statement, the Stockholder shall provide to Parent
notice of such proposed sale (a “Sale Notice”) no
later than three Business Days prior to the expected sale
date. Notwithstanding anything to the contrary contained herein,
Parent may, upon written notice to the Stockholder within 2 Business Days after
receipt of such Sale Notice, suspend the Stockholder’s use of any prospectus
which is a part of the Registration Statement if (i) Parent is pursuing an
acquisition, merger, reorganization, disposition or other similar transaction
and Parent determines in good faith that its ability to pursue or consummate
such a transaction would be materially adversely affected by any required
disclosure of such transaction in the Registration Statement or (ii) Parent has
experienced some other material non-public event the disclosure of which at such
time, in the good faith judgment of Parent, would materially adversely affect
Parent; provided, however, in no event shall the Stockholder be suspended for a
period that exceeds an aggregate of 90 days in any 365-day period; provided
further, that the Effectiveness Period shall be extended by the number of
Business Days during which the Stockholder’s use of any such prospectus is
suspended pursuant to this Section
6(b). Upon disclosure of such information or the termination
of the condition described above, Parent shall provide prompt notice to the
Stockholder, promptly terminate any suspension of sales it has put into effect
and take such other actions to permit registered sales of Registrable Securities
as contemplated in this Agreement.
(c) During
the Lock-Up Period, if Parent proposes to file a prospectus supplement to an
effective shelf registration statement, other than the Registration Statement
contemplated by Section 6(a), or
Parent proposes to file a registration statement, in either case, for the sale
of shares of Parent Common Stock in an offering in which shares of Parent Common
Stock are sold to an underwriter on a firm commitment basis for reoffering to
the public or an offering that is a “bought deal” with one or more investment
banks (an “Underwritten
Offering”) for its own account and/or another Person, then as soon as
practicable but not less than three Business Days prior to the filing of (i) any
preliminary prospectus supplement relating to such Underwritten Offering
pursuant to Rule 424(b) under the Securities Act, (ii) the prospectus supplement
relating to such Underwritten Offering pursuant to Rule 424(b) under the
Securities Act (if no preliminary prospectus supplement is used), or (iii) such
registration statement, as the case may be, then Parent shall give notice
(including, but not limited to, notification by electronic mail) of such
proposed Underwritten Offering to the Stockholder and such notice shall offer
the Stockholder the opportunity to include in such Underwritten Offering such
number of Registrable Securities (the “Included Registrable
Securities”) as the Stockholder may request in writing; provided,
however, that if Parent has been advised by the book-running lead manager of
such Underwritten Offering (the “Managing
Underwriter”) that the inclusion of Registrable Securities for sale for
the benefit of the Stockholder will have a material adverse effect on the price,
timing or distribution of the shares of Parent Common Stock in the Underwritten
Offering, then the amount of Registrable Securities to be offered for the
accounts of the Stockholder shall be determined based on the provisions of Section 6(d) below;
provided, further, that Parent shall not be obligated to include any Registrable
Securities in any Underwritten Offering unless the Stockholder requests
inclusion of at least $25 million of Registrable Securities (or such lesser
amount as may be determined by the Managing Underwriter) in such Underwritten
Offering. The notice required to be provided in this Section 6(c) to the
Stockholder shall be provided on a Business Day pursuant to Section 11 hereof and
receipt of such notice shall be confirmed by the Stockholder. The
Stockholder shall then have three Business Days after receiving such notice to
request inclusion of Registrable Securities in the Underwritten Offering, except
that the Stockholder shall have one Business Day after it confirms receipt of
the notice to request inclusion of Registrable Securities in the Underwritten
Offering in the case of a “bought deal” or “overnight transaction” where no
preliminary prospectus is used. If no request for inclusion from the
Stockholder is received within the specified time, the Stockholder shall have no
further right to participate in such Underwritten Offering. If, at
any time after giving written notice of its intention to undertake an
Underwritten Offering and prior to the closing of such Underwritten Offering,
Parent shall determine for any reason not to undertake or to delay such
Underwritten Offering, Parent may, at its election, give written notice of such
determination to the Stockholder and, (A) in the case of a determination not to
undertake such Underwritten Offering, shall be relieved of its obligation to
sell any Included Registrable Securities in connection with such terminated
Underwritten Offering, and (B) in the case of a determination to delay such
Underwritten Offering, shall be permitted to delay offering any Included
Registrable Securities for the same period as the delay in the Underwritten
Offering. The Stockholder shall have the right to withdraw its
request for inclusion of its Registrable Securities in such offering by giving
written notice to Parent of such withdrawal up to and including the time of
pricing of such offering. Notwithstanding the foregoing, the
Stockholder may deliver written notice to Parent requesting that the Stockholder
not receive notice from Parent of any proposed Underwritten Offering; provided
that the Stockholder may later revoke any such notice.
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(d) If the
Managing Underwriter of any proposed Underwritten Offering of shares of Parent
Common Stock included in an Underwritten Offering involving Included Registrable
Securities advises Parent that the total amount of shares of Parent Common Stock
that the Stockholder and any other Persons intend to include in such offering
exceeds the number that can be sold in such offering without being likely to
have a material adverse effect on the price, timing or distribution of the
shares of Parent Common Stock offered or the market for the shares of Parent
Common Stock, then the shares of Parent Common Stock to be included in such
Underwritten Offering shall include the number of Registrable Securities that
such Managing Underwriter advises Parent can be sold without having such adverse
effect, with such number to be allocated (i) first, to Parent, (ii) second, to
any Person who has exercised a demand registration right, and (iii) third, pro
rata among the Stockholder and any other Persons who have been or are granted
registration rights who have requested participation in the Underwritten
Offering.
(e) Following
an Underwritten Offering during the Lock-Up Period and during the Effectiveness
Period, the Stockholder agrees not to effect any public sale or distribution of
the Registrable Securities during the 90-day period following pricing of an
Underwritten Offering of equity securities by Parent (except as provided in this
Section 6(e));
provided, however, that the duration of the foregoing restrictions shall be no
longer than the duration of the shortest restriction imposed by the underwriters
on the officers or directors or any other securityholder of Parent on whom a
restriction is imposed in connection with such public offering. The
provisions of this Section 6(e) shall
not apply if the Stockholder owns less than 5% of the outstanding voting
securities of Parent.
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7. Certain
Events. This Agreement and the obligations hereunder shall
attach to the Stockholder’s Subject Shares and shall be binding upon any Person
to which legal or beneficial ownership of such Subject Shares shall pass,
whether by operation of law or otherwise. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of the Company affecting the Subject Shares, the number
of Subject Shares listed on Schedule A beside the
name of the Stockholder shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any such additional Subject
Shares.
8. Stockholder
Capacity. No Stockholder or affiliate of the Stockholder who
is or becomes during the Term a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. The
Stockholder signs solely in its capacity as the record or beneficial owner of,
or the trustee of a trust whose beneficiaries are the beneficial owners of, the
Stockholder’s Subject Shares.
9. Further
Assurances. The Stockholder shall, upon request and at the
expense of Parent, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent to be necessary or
desirable to carry out the provisions hereof.
10. Termination. This
Agreement, and all rights and obligations of the parties hereunder, shall
terminate upon (and shall only be effective from the date hereof until) the
first to occur of (a) the Effective Time; provided, that Section 5(d), Section 5(e), Section 6, Section 7, Section 10 and Section 11 shall
survive any termination of this Agreement pursuant to this clause (a); and (b)
the date upon which the Merger Agreement is terminated in accordance with its
terms; provided, that Section 7, Section 10 and Section 11 shall
survive any termination of this Agreement pursuant to this clause (b); provided,
further, that termination of this Agreement pursuant to clause (a) or (b) above
shall not relieve any party hereto from liability for any willful and knowing
breach hereof prior to such termination. The period from the date
hereof until termination of this Agreement pursuant to this Section 10 is
referred to herein as the “Term.”
11. Miscellaneous.
(a) All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice): (i) if to Parent, to the appropriate address set forth in Section 8.4
of the Merger Agreement; and (ii) if to a Stockholder, to the appropriate
address set forth on Schedule A.
(b) Each
party submits to the jurisdiction of any state or federal court sitting in the
State of Delaware in any dispute or action arising out of or relating to this
Agreement and agrees that all claims in respect of such dispute or action may be
heard and determined in any such court. Each party also agrees not to
bring any dispute or action arising out of or relating to this Agreement in any
other court. Each party agrees that a final judgment in any dispute
or action so brought will be conclusive and may be enforced by action on the
judgment or in any other manner provided at law (common, statutory or other) or
in equity. Each party waives any defense of inconvenient forum to the
maintenance of any dispute or action so brought and waives any bond, surety, or
other security that might be required of any other party with respect
thereto.
8
(c) The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
(d) This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective as to the
Stockholder when one or more counterparts have been signed by each of Parent and
the Stockholder and delivered to Parent and the Stockholder.
(e) This
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and this Agreement is not intended to confer upon any
other person (other than Parent) any rights or remedies hereunder.
(f) This
Agreement 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
law thereof, except as otherwise required by mandatory provisions of the Laws of
the State of Nevada.
(g) Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties without the prior written consent of the other
parties, except by laws of descent. Any assignment in violation of
the foregoing shall be void.
(h) As
between the Stockholder and Parent, each of such parties agrees that irreparable
damage to the other, non-breaching party would occur and that such non-breaching
party would not have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the non-breaching party shall be entitled to an injunction or injunctions
to prevent breaches by the other party of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which it may be entitled at law or in
equity.
(i) If any
term, provision, covenant or restriction herein, or the application thereof to
any circumstance, shall, to any extent, be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions herein and the application thereof to any
other circumstances shall remain in full force and effect, shall not in any way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
(j) No
amendment, modification or waiver in respect of this Agreement shall be
effective against any party unless it shall be in writing and signed by such
party.
[SIGNATURE
PAGE FOLLOWS]
9
IN
WITNESS WHEREOF, Parent and the Stockholder have caused this Agreement to be
duly executed and delivered as of the date first written above.
|
STONE
ENERGY CORPORATION
By: /s/ DAVID H.
WELCH
Name:
David H. Welch
Title:
President and Chief Executive Officer
|
|
|
COMSTOCK
RESOURCES, INC.
By: /s/ M. JAY
ALLISON
Name: M. Jay Allison Title:
President and Chief Executive Officer
|
SCHEDULE
A
|
Stockholder Name and
Address
|
Company Common
Stock
|
Other
Securities
|
|
Comstock
Resources, Inc.
5300
Town and Country Blvd.
Suite
500
Frisco,
TX 75034
|
32,224,661
|
None
|
Exhibit 99.1
|
5300 Town and Country Blvd.,
Suite 500
|
|
 |
Frisco, Texas
75034
|
|
Telephone: (972)
668-8800
|
|
|
Contact: Roland O.
Burns
|
|
|
Sr. Vice President and Chief
Financial Officer
|
|
|
Web Site:
www.comstockresources.com
|
NEWS RELEASE
For Immediate
Release
COMSTOCK
RESOURCES, INC. ANNOUNCES
BOIS
d'ARC ENERGY, INC. TO BE ACQUIRED
BY
STONE ENERGY CORPORATION
FRISCO, TEXAS, April 30,
2008 -- Comstock Resources, Inc. ("Comstock") (NYSE: CRK) announced that
its 49% owned subsidiary Bois d'Arc Energy, Inc. ("Bois d'Arc") (NYSE: BDE)
entered into a definitive merger agreement with Stone Energy Corporation
("Stone") (NYSE: SGY) pursuant to which Stone will acquire Bois
d'Arc. Under the terms of the merger agreement, Bois d'Arc
shareholders, including Comstock, will receive $13.65 in cash and 0.165 shares
of Stone common stock for each share of Bois d'Arc. Comstock will
receive $440 million in cash and 5,317,069 shares of the common stock of Stone
for its stake in Bois d'Arc.
Completion
of the transaction is subject to approval by the Bois d'Arc and Stone
stockholders, regulatory approvals, and other customary
conditions. Concurrent with the execution of the merger agreement,
Comstock entered into a stockholder agreement in which it has agreed to vote in
favor of the merger.
"We
are very excited about this combination and are enthusiastic about our 13% post
merger ownership in Stone Energy" stated M. Jay Allsion, Chief Executive Officer
of Comstock. "Stone has made significant strides in positioning
itself as a leader in the Gulf of Mexico and the Bois d'Arc team has done an
outstanding job of creating value since Bois d'Arc's inception."
This
press release may contain "forward-looking statements" as that term is defined
in the Private Securities Litigation Reform Act of 1995. Such
statements are based on management's current expectations and are subject to a
number of factors and uncertainties which could cause actual results to differ
materially from those described herein. Although the Company believes
the expectations in such statements to be reasonable, there can be no assurance
that such expectations will prove to be correct.
Comstock
Resources, Inc. is a growing independent energy company based in Frisco, Texas
and is engaged in oil and gas acquisitions, exploration and development
primarily in Louisiana and Texas and in the Gulf of Mexico through its ownership
in Bois d'Arc Energy, Inc. (NYSE: BDE). The Company's stock is traded
on the New York Stock Exchange under the symbol
CRK.